On January 12, 2017, the Wisconsin Supreme Court approved Rule Petition 16-04 that expanded the role of lawyer mediators in family law cases. The rule permits a lawyer mediator who assists parties in reaching agreements in a case arising under the Family Code to draft, select, complete, modify and file the legal documents required to implement agreements reached in mediation. The effective date will be set forth when the Court issues the formal order.
Previously, lawyer mediators could not draft legal documents such as Marital Settlement Agreements and Judgments which meant that parties had to use checkbox forms, hire individual lawyers or, most frequently, do their legal drafting and filing themselves. The new rule authorizes neutral drafting, with informed written consent, and states the ethical rules of competence and diligence apply to such lawyer mediators.
The rule specifies the minimum requirements for informed consent which include an explanation of the lawyer’s limited role, that the lawyer does not represent either party and cannot give legal advice to the parties, and the desirability of each party seeking independent legal advice. The rule permits the lawyer-mediator to file the documents on behalf of the parties but not appear in court. It requires the attorney to disclose that the document was drafted with the assistance of a lawyer acting as a mediator.
The impetus for the rule was the need to adapt the practice of family law to address the dramatic increase in the number of parties who navigate the family court system without legal assistance. Given that an estimated 70% of all couples attempt to navigate their divorce without any legal assistance, mediation is an efficient and cost effective alternative. The new rule allows parties to get the full value of a lawyer-mediator’s expertise by authorizing the lawyer to neutrally draft all legal documents needed on behalf of both parties. It is a significant advance in supporting the changing role of lawyers as neutral or limited scope problem-solvers, not just adversarial advocates.
Because mediation is not an adversarial two-lawyer process, parties who currently avoid lawyers for fear of escalating conflict or losing control of their case, will be more willing to seek legal assistance from a lawyer mediator in resolution of their disputes. Having the lawyer mediator draft all legal documents neutrally for both parties helps assure their joint decisions are well-informed and properly written for the court and all necessary implementation steps are taken. This will reduce conflict and post-judgment litigation that arises from ill-informed decisions or poorly drafted documents.
The new rule is a trend-setting response to the evolution of family law. Wisconsin has taken a step that few other states have done. It is a positive step forward for the public, the legal profession, and the courts.