ARBMED21 Family Law Mediation
CHAPTER 21
FAMILY LAW MEDIATION
Joshua Kadish
Joshua Kadish, B.A., Haverford College (1973); J.D., Stanford University (1979); member of the State Bar of California since 1979 and the Oregon State Bar since 1980; partner, Meyer & Wyse LLP, Portland.
The ORS citations in this chapter were checked through 1999.
INTRODUCTION
(§21.1) Scope of Chapter
ETHICAL AND PROFESSIONAL ISSUES
(§21.14) Oregon’s Ethical Guidelines
Specific Issues
(§21.18) Confidentiality and Privilege
COURT-CONNECTED MEDIATION
(§21.21) Procedure
FORMS
21-1 Mediation and Fee Agreement
21-2 Mediation Services Agreement
21-4 Consulting Attorney Services Agreement
(§21.1) Scope of Chapter
Two treatises cited throughout the 1996 text have been updated:
-- Family Law (Oregon CLE 1990) was supplemented in 1997.
-- The Ethical Oregon Lawyer (Oregon CLE 1991) was supplemented in 1998.
(§21.14) Oregon’s Ethical Guidelines
DR 5-106(B) was revised in 1998 to read as follows:
(B) A lawyer serving as a mediator may draft, and may file in court, a settlement agreement, including a stipulated order or judgment to implement the settlement agreement, but must advise and encourage the parties to seek independent legal advice before executing it.
The former version of this rule (see the 1996 text) allowed the mediator to draft a settlement agreement. The amendment allows the mediator to file the settlement agreement in court along with a stipulated order or judgment to implement the settlement agreement.
The moving force behind the amendment was the Oregon Family Law Legal Services Commission, which sought ways to improve access to the courts for low-income or otherwise unrepresented parties. The commission apparently believed that mediators could provide such services. Lawyer-mediators already working with the parties clearly had the skills to file the rather routine paperwork necessary to obtain a divorce once a settlement agreement was signed.
The 1998 revision was controversial from its inception. Mediators tended to argue that the revision had either gone too far or not gone far enough. Those in the “gone too far” camp first argued that the rule blurred the line between representation and nonrepresentation by allowing mediators to essentially represent the petitioner in a divorce. Drafting and filing the judgment on behalf of one of the parties was believed to compromise a mediator’s neutrality. Second, by processing the paperwork for the parties, the mediator removed any real impetus that the parties might have to seek independent legal advice before executing a settlement agreement. The fear was that far fewer mediation clients would seek independent legal advice if the mediator was prepared to process the divorce for them.
Mediators in the “not gone far enough” camp argued that because the rule dealt only with a stipulated order or judgment, it was unclear whether the mediator could help the parties with initial pleadings required for a divorce. Another criticism was that the rule was too focused in family law and needed to be expanded or revised to accommodate other types of disputes. Lawyers who mediated multiparty disputes, for example, argued that a mediator who must withdraw on the request of any one party allows one party to terminate a mediation that all the other parties might wish to continue.
These and other concerns led to an attempt in 1999 to further revise the rule. After significant debate, the motion to amend the DR 5-106 was tabled for further consideration.
In 2000, the OSB House of Delegates approved and the supreme court subsequently adopted a substantial revision to DR 5-106. The revision first addressed the confusion regarding the mediator’s role in drafting pleadings other than a stipulated order. DR 5-106(B)(1) now provides that “A lawyer serving as a mediator may prepare documents that memorialize and implement the agreement reached in mediation.” The rule also provides that a lawyer serving as a mediator, “with the consent of all parties, may record or may file the documents in court.” DR 5-106(B)(3). Thus, the amended rule apparently allows a lawyer-mediator to draft and file in court all of the pleadings required to obtain a dissolution of marriage. However, the lawyer serving as a mediator must “recommend that each party seek independent legal advice before executing the documents.” DR 5-106(B)(2).
The rule also attempts to address critics’ concerns that the mediator who drafts pleadings may be representing the parties, or at least may be perceived by the parties to be acting in a representational capacity. The rule at DR 5-106(A)(2) now provides that a lawyer-mediator “must clearly inform the parties of and obtain the parties’ consent to the lawyer’s role as mediator.” A lawyer serving as a mediator “shall not act as a lawyer for any party against another party in the matter in mediation or in any related proceeding.” DR 5-106(A)(1).
Practice Tip: A careful lawyer will practice mediation only with a written mediation agreement because DR 5-106 requires the parties’ consent to the lawyer serving as mediator, with an acknowledgment that the lawyer is not representing any party in the matter in mediation.
“When a lawyer is serving or has served as a mediator in a matter, a member of the lawyer’s firm may accept or continue representation of a party in the matter or in a related matter if all parties to the mediation consent after full disclosure.” DR 5-106(C). Full disclosure must include a recommendation that the recipients seek independent legal advice to determine if consent should be given. The recommendation must be contemporaneously confirmed in writing. DR 10-101(B)(2).
The requirements in DR 5-106(A)(2) (informing parties and obtaining consent) and DR 5-106(B)(2) (recommending independent legal advice) do not apply to mediation programs established by law or court order. DR 5-106(D).
(§21.18) Confidentiality and Privilege
The 1997 Legislature repealed ORS 36.205 and enacted ORS 36.220–36.238. In general, mediation communications are confidential unless the parties agree otherwise. The terms of a mediation agreement, however, are not confidential unless the parties agree otherwise. Mediation communications in which a state agency is a party are generally not confidential. Mediation communications with other public bodies are confidential unless the other public body adopts a policy to the contrary. Exceptions to the general rule exist to permit disclosure relating to child abuse or elder abuse (ORS 36.220(5)) and to prevent commission of a crime (ORS 36.220(6).
(§21.21) Procedure
Minimum requirements for education, training, experience, and conduct for court-connected domestic-relations financial mediators in programs established under ORS 107.755(4) are set forth in OAR 718-050-0000 to 718-050-0120.
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