Comments: When a Deal is Not Equal

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Rina Goodman, Seattle WA     07/25/13
There are many reasons why parties will agree to settlements that, to our way of thinking, are not perfectly balanced. In client-centered mediation, which is the form of mediation that I adhere to, I believe that my role is to help my clients achieve the outcome that they, after being fully informed of the financial and legal implications, believe reflects their values and understandings and is most fair in their eyes. On the other hand, I do tell my clients at the beginning-- at sometimes intermittently-- that in instances where there is a huge discrepancy between them with respect to their final agreement, I will check-in to insure that it is fully-informed, not coerced, and not made with the wish to "just get it over with." I will raise my concern with the party who is more favored by that settlement to find out if there is flexibility. I also will carefully explore the reasons behind the agreement and check to see if both parties are informed about their legal rights and obligations, as well as the way in which the agreement will impact each of them. Finally, I require my clients to have the Property Settlement Agreement reviewed by attorneys. While I don't wish to be an instrument of gross unfairness, I don't wish to undermine the free will of informed clients.

Andrea , Boise   07/25/13
Thanks for the informative article. As an attorney and a new mediator, I always struggle with when am I crossing the line and providing legal advice? It seems that explaining contractual terms or the law ought to be okay, especially when the bargaining power is so clearly mismatched. However, I'm not sure. Thoughts?

Diana Mercer, Play CA     07/24/13
Thanks for the feedback!
Thanks for all the thoughtful comments!

Naomi  , Los Angeles CA   07/24/13
When a Deal is no Equal
Diana,I agree 100% with your methodology. In fact, I would go so far as to say that your actions are best practices and ALL attorney mediators should do what you do. Even though I don't know your specific model or processes for your particular mediation firm, I do know that you are still an ESQ.I think that your practices are in the highest conformity of the mediation rules AND the ethics rules promulgated by the state bar.As to the Mediation Best Practices: One of the hallmarks of true mediation is Transparency. You are doing your job as a mediator by providing transparency.The only exception that comes to mind is parties with evidence of domestic violence or major unhealthy control/power issues. Other than that, there is nothing to fear by being transparent.Why? Because another hallmark of mediation is Empowerment. TRANSPARENCY lifts the fog which leads to the shining sun of EMPOWERMENT. So long as the parties make a decision from a place of having all the facts, you have done your job. So while it still may feel inequitable for you, that feeling is what transformative mediation calls "your own personal directive". Recognize it and move on.In fact, having naively chosen to be a mediator long before I was a lawyer, I have pondered the ethics of the two industries for more than a decade. So here is another opinion of mine as to the legal perspective; if an attorney/mediator does not do what you do, they could be liable for legal malpractice now or at some point in the future. While the state bar occasionally issues legal ethics opinions pertaining to the intersection of lawyers-mediators, the fact remains that we are bound by two sets of rules. The PR/B&P rules as a lawyer, and the mediation code of ethics and related rules. They sometimes conflict. But as of today, there is no agency in the mediation sector that has "teeth" to enforce violations of mediation rules. As of today, the state bar does have the power to take away our license or punish us for violating our ethical rules.Therefore, mediators that are also attorneys need to be be very very careful in their dealings with parties. While mediation may still be the wild west, lawyer/mediators are already caged and penned. So we need to move with extra care.You are clearly and unequivocally following the Professional Rules of Responsibility by your actions. Even though we do not provide advice and we do not "represent" both parties, or even one party, we should still adhere strictly to the ethics rules of lawyers. EVEN IF we do not consider what we do the practice of law. Why? Because the reality is this: the state bar has left this area grey and uncertain. They have the power to decide, at any time, that they want to re-define the duties and responsibilities of lawyer/mediators. In summary my opinion is two fold: 1) your actions are best practices for a mediator; and2) your actions are best practices for a lawyer.If parties give you a hard time about this then review your retainer agreement or opening statement and try to add or adjust information to manage party expectations a bit differently.

Miriam Zimmerman, San Mateo CA     07/23/13
When a Deal is not Equal
Although my partner is licensed as both a CPA and as an attorney, of course he cannot give advice to our divorcing clients. As part of our process, and we explain it clearly both orally and in our written Mediation Contract each has to sign, we require attorney consultations prior to the parties' signing their agreement. We explain that we do not want either of them to think later that they may have given up too much by having been in mediation. They may consult with an attorney at anytime, but before we let them sign the final MSA (Marital Settlement Agreement), separate consulting attorneys have to explain the document to each. This requirement precludes the situation described above. The attorney has to sign a short form confirming that the client understands the content of the MSA. The attorney signature pages (one from each client) are attached to the Judgment.