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Resources > Kadish Chapter

Kadish Chapter on Family Mediation

MEDIATION

Joshua D. Kadish*

Joshua D. 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 author acknowledges the substantial contribution of H. Jay Folberg to this chapter, and of John C. Gartland for help with forms.

The case citations in this chapter were checked for overrulings and reversals through November 2001. The ORS citations were checked through 2001.

I. INTRODUCTION

 

A. ('22.1) Scope of Chapter

B. ('22.2) Overview of Family Law Mediation

C. ('22.3) Mediation Distinguished from Other Processes

 

II. THE LAWYER=S ROLE IN FAMILY LAW MEDIATION

 A. The Lawyer as Mediator

1. ('22.4) In

General

2. The Mediation Process

 

a. ('22.5) The Setting

b. ('22.6) The First Session

c. ('22.7) Child Custody and Visitation Issues

d. ('22.8)

Financial Issues

B. The Lawyer as Mediation Consultant

 

1. ('22.9) Referring a Client to Mediation

 2. ('22.10) Advising the Client During Mediation

 3. ('22.11) Drafting and Reviewing a Mediated Agreement

 C. ('22.12) Comediation

 III. ETHICAL AND PROFESSIONAL ISSUES

A. ('22.13) In General

 B. ('22.14) Oregon=s Ethical Guidelines

 C. ('22.15) Standards of Practice

 D. Specific Issues

1. ('22.16) Fairness

 2. ('22.17) Disclosure

 3. ('22.18) Confidentiality and Privilege

 4. ('22.19) Comediation

 IV. COURT-CONNECTED MEDIATION

A. ('22.20) In General

 B. ('22.21) Procedure

 FORMS

22-1 Mediation and Fee Agreement

22-2 Mediation Services Agreement

22-3 Mediated Custody Agreement

22-4 Consulting Lawyer Services Agreement

22-5 Stipulated Request for Mediation and Order

22-6 Request for Mediation by One Parent and Order

I. INTRODUCTION

A. ('22.1) Scope of Chapter

 

This chapter discusses the practice of family law mediation in Oregon and its relation to general family law practice. It describes the lawyer=s role both as mediator and as adviser to a client in mediation; it also examines benefits and limitations that arise when the lawyer and the mental health professional offer mediation services as a team. The focus of this chapter is dissolution, although mediation may be useful in resolving family-related disputes involving adoptions, will contests, and intergenerational conflicts. Mediation also may be used to help create prenuptial and domestic partnership agreements.

 The chapter gives particular attention to the difficult ethical and professional issues facing the lawyer-mediator. Family law mediation is developing rapidly. The lawyer-mediator must constantly be aware of his or her evolving responsibilities to mediation clients.

Mediation orientation is formally mandated by statute in contested cases in Oregon (see ORS 107.755). Courts may refer some cases to mediation after orientation (see ORS 107.765). Many courts have a practice of referring all disputes involving children to mediation unless the parties petition for waiver based on good cause. This chapter addresses procedural aspects of court-connected mediation.

Last, this chapter supplies sample documents, including two mediation and fee agreements, a stipulated request for mediation, a request for mediation by one parent, a consulting lawyer agreement, and portions of a mediated child custody agreement. See Forms 22-1 to 22-6.

B. ('22.2) Overview of Family Law Mediation

 

 Traditionally, a lawyer approaches a dissolution as an adversarial proceeding in which he or she must zealously advocate the client=s interest. In theory and practice, the lawyer may not distinguish between his or her role in a dissolution as opposed to his or her role in any other kind of litigation. This approach often intensifies conflict between divorcing parties.

 Mediation offers an alternative to the traditional adversarial divorce. It provides a model in which the parties do not oppose each other as combatants, but instead seek to end the marriage in a nonhostile manner with a minimum of conflict. Particularly when children are involved, many clients may benefit from a less confrontational approach to dissolution. A modern family lawyer should therefore be prepared to discuss divorce by mediation as an alternative to divorce by lawyer negotiation and litigation.

Mediation is a process by which the parties, with the assistance of a neutral person, attempt to identify their points of agreement and disagreement, explore alternatives, and reach accommodation. A successful mediation results in a consensual settlement of some or all of the issues relating to the dissolution or separation.

When children are present in the marriage, mediation specifically recognizes the primacy of their needs. It encourages the divorcing couple to acknowledge that although their relationship as husband and wife is coming to an end, their relationship as parents of their children will continue. Mediation allows the couple to develop an ongoing parental relationship and to learn means of resolving future conflicts through direct negotiation.

In summary, the general goals of mediation are (1) to help the parties communicate openly with each other in order to develop and choose among alternatives, (2) to address the needs of the parties, (3) to reach an agreement perceived by each of them as fair, and (4) to provide a model for future parenting and conflict resolution. Jay Folberg & Alison Taylor, Mediation 9 (1984).

C. ('22.3) Mediation Distinguished from Other Processes

 

 It is useful to distinguish mediation from other types of processes. Mediation was not formally recognized as a process in the family law area until the late 1970s. Consequently, many clients and lawyers do not understand what mediation is and often confuse it with other processes.

First, mediation is not conciliation. Perhaps the most common misconception regarding mediation is that it is intended to help the parties explore reconciliation. Mediation is not intended to save the existing marriage, although some reconciliations may result from face-to-face discussions. Mediation is intended as a method of terminating the marriage in the context of no-fault divorce laws. The parties are discouraged from focusing on marital issues and are encouraged instead to examine their needs in the context of the termination of their marriage and to arrive at an agreement through which those needs can be met.

 

Second, mediation is not therapy. Mediation can be incidentally therapeutic but it is not primarily a therapeutic process. It does not focus on changing the parties= behaviors or insights; rather, it is goal-oriented and attempts to reach conclusions regarding the variety of legal issues confronting divorcing parties. However, the parties= communications with each other may be enhanced during mediation and their relationship as parents may be improved.

 Third, mediation is not arbitration. Traditionally, arbitration is an adjudicatory proceeding in which the parties contractually authorize a neutral third person to decide on a binding or nonbinding resolution of the issues. The parties to mediation do not authorize the mediator to make decisions for them. In mediation, the parties make all decisions themselves. Arbitration, in some circumstances, may provide a useful adjunct to mediation.

Last, mediation is not negotiation as negotiation is generally understood in the dissolution process. Traditionally, negotiation is conducted between lawyers on an informal basis before litigation. The goal of each lawyer is to advance the interests of his or her clients as far as possible. The needs of the opposing party are relevant only in tactical calculations of how to obtain concessions. In mediation, on the other hand, the parties ideally try to create solutions that will work to their mutual advantage in a cooperative process. Each party comes to recognize and respect the needs of the other and tries to negotiate an agreement that meets both parties= needs. Practically, however, many mediations include a component of traditional adversarial bargaining.

Perhaps the most distinctive feature of a mediated dissolution as opposed to the traditional adversarial dissolution is that the former leaves the authority for decision-making to the parties rather than to the legal system. The parties are free to consider or to ignore how a court of law might resolve their case. The focus remains on establishing a resolution of issues that will best meet a particular family=s needs rather than establishing who wins or loses. In mediation, the goal is to create a fair agreement in which both parties win.

If the parties regard the decision as their own, they may be more willing to live with its terms. Some studies indicate that mediated settlements produce fewer postjudgment enforcement problems. For a recent survey of research, see Joan B. Kelly, Children=s Adjustment in Conflicted Marriage and Divorce: A Decade Review of Research, 50 J Am Acad Child & Adolescent Psychiatry 963 (2000). For a more critical view, see Connie J.A. Beck & Bruce D. Sales, A Critical Reappraisal, of Divorce Mediation Research and Policy, 6 Psychology, Pub Pol=y & Law 989 (2000).

II. THE LAWYER=S ROLE IN FAMILY LAW MEDIATION 

A. The Lawyer as Mediator

1. ('22.4) In General

Mediation is not the exclusive province of lawyers. Historically, most family mediators were mental health professionals. However, mediation is not a regulated profession and a mediator requires no credentials unless performing mandated services for some circuit courts.

 

Lawyers form a significant and growing number of the professionals who offer mediation services. In Oregon, lawyers are specifically permitted to act as mediators under DR 5-106. See '22.14, infra. This is in contrast to some other jurisdictions in the United States in which lawyers are specifically prohibited or severely restricted in acting as mediators.

Lawyers bring to mediation several skills acquired from traditional legal training. First, lawyers possess analytical skills useful for sorting through issues and for creating options to resolve points of disagreement.

Second, lawyers are familiar with the process of negotiation, which is the core of mediation. Most lawyers are comfortable with a relatively high level of conflict and can help parties in mediation assess their positions and make the necessary trade-offs to arrive at a consensual agreement.

 

Third, and perhaps most significant, lawyers are familiar with the law and can help parties interpret legal guidelines derived from statutes and cases so that clients can make decisions that not only meet their own sense of fairness but also do not violate minimal societal standards of fairness reflected in the law. Professors Mnookin and Kornhauser have suggested that the primary function of contemporary divorce law is to provide a framework within which divorcing couples can determine their postdissolution rights and responsibilities. The professors note that in both the United States and England, the overwhelming majority of divorcing couples achieve dissolutions without judicial intervention. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale LJ 950 (1978B1979). Unlike a mental health professional, a lawyer is in a position to share with the mediating couple the lawyer=s knowledge of divorce law or to inform them of the range of resolutions that might be imposed by a court if the couple were to proceed to litigation. The lawyer-mediator is also able to advise the parties about such related issues as tax considerations, enforceability, and estate planning.

A lawyer-mediator also can produce a proposed agreement between the parties in a form that can be directly incorporated into a judgment of dissolution. The nonlawyer can produce only a memorandum of agreement, which may fail to address the issues in sufficient detail to obviate the need for further negotiations.

 

It is important to recognize that a lawyer may not possess all the skills needed by the mediating couple. The lawyer is more likely than the mental health professional to focus on the parties= articulated disagreements rather than on the conflicts underlying their disagreements. Frequently the conflicts that led the couple to divorce will become manifest during mediation and will threaten to block agreement. Lawyers normally lack the training needed to help couples put aside these conflicts. Especially when the parties do not communicate well, lawyers should consider involving a mental health professional.

Furthermore, although a central goal of mediation is to help the parties reach a marital settlement agreement, an equally important goal is to help the parties find ways of negotiating future disputes between themselves, particularly with regard to parenting issues. Lawyers are not necessarily trained to teach a couple coparenting and negotiation skills. Thus, in mediation, as in any other type of case, the lawyer must be aware of his or her limitations and know when to enlist the aid of others. Lawyers are comfortable retaining the services of accountants and appraisers. In mediation they must become comfortable with retaining the services of mental health professionals as well. Another possibility for the lawyer-mediator is to work in comediation with a mental health professional. This approach is discussed more fully in '22.12, infra.

2. The Mediation Process

a. ('22.5) The Setting

Family law mediation is usually conducted in private. Mediation usually follows one of two models. In the first model, although the parties may each retain separate lawyers, the lawyers are not present during the sessions. Both parties and the mediator are generally present in one room throughout the mediation. Some mediators will occasionally have individual caucuses with each party, sometimes on the understanding that communications in individual caucuses will remain confidential. See '22.18, infra. The mediator may not separately advise the parties on the law. DR 5-105(E). The purpose of caucuses is to provide each party with an opportunity to inform the mediator of concerns or bottom-line positions that he or she may not feel comfortable expressing to the other party.

Under the second model, the parties= lawyers attend the mediation sessions. Although the lawyers, the parties, and the mediator may begin the mediation in one room, the mediator usually separates the parties and their lawyers into caucuses. The mediator will then engage in Ashuttle diplomacy@ to see if the case can be settled. Under this model, the focus is more on traditional bargaining and less on helping the parties to communicate with each other and finding shared values.

b. ('22.6) The First Session

The first mediation session is critical in establishing the ground rules and general tone of the mediation. The mediator should explain the mediation process in detail, including the services that the parties will receive from the mediator, the limitations of those services, and the costs. The mediator should provide a draft of a clearly written mediation and fee agreement to each party. Agreements vary according to the complexity of the case, the sophistication of the parties, and the taste of the mediator. For relatively simple and complex forms, see Forms 22-1 and 22-2. An agreement may include the following:

(1) Scope of Mediation. The agreement may set forth that all issues incident to the dissolution will be mediated unless the parties wish to exclude any areas. If the parties wish to include other issues, those issues may be set forth.

(2) Procedures and Format. The agreement may describe the mediation process, specify the format for the meetings, and explicitly provide that, unless otherwise agreed by the parties, no meeting will take place in the absence of either party and no other persons will be present.

Practice Tip: Although some agreements try to set forth the number and length of the sessions, the parties should be forewarned that trying to estimate the course of mediation is like being asked to estimate how long it takes to build a home. The answer depends on what kind of house is being built and who is building it.

 

(3) Representation. The agreement should specify that, although the mediator as a lawyer will serve both parties in his or her capacity as a lawyer- mediator (see '22.14, infra), the lawyer will remain neutral on any conflicting interests. The agreement should specify that the lawyer does not represent either party. The agreement must preserve the lawyer=s right to withdraw from mediation if it becomes evident that he or she cannot act neutrally and that, on withdrawal, the lawyer-mediator will not represent either party further in matters involving the dissolution.

(4) Adversary Actions. The agreement should make clear that the parties may be in a fiduciary relationship to each other as husband and wife and therefore may not engage in adversary legal action during the course of mediation or act in bad faith toward one another. Full disclosure of financial information is required, and any settlement without that disclosure is subject to being set aside by a court. See ORS 107.089; '6.7, supra.

(5) Confidentiality. The agreement should acknowledge that mediation is a form of settlement negotiations and provide that any information exchanged in mediation is confidential among the parties and the mediators. The parties should agree that neither of them will call the mediator to testify or provide any material from mediation in any litigation. See '22.18, infra.

(6) Transfer of Assets. The parties may agree not to transfer or to encumber assets during the mediation process without the written consent of the other.

(7) Fairness. The agreement should state the goal of allowing the parties to reach a fair agreement and provide that any party or the mediator may withdraw from the process at any time if he or she believes that the goal is not being reached.

 

(8) Expenses. The mediator=s fee should be set forth. The lawyer-mediator may wish to provide that the parties are jointly and severally liable for payment of all fees. Some mediators require that fees be shared equally by the parties to avoid compromising neutrality. As a practical matter, the parties may wish to negotiate the payment of fees during the course of the mediation.

The mediator should ask each party to review the fee agreement with independent counsel before the next mediation session so that the agreement can be finalized and executed at the second session.

After discussing these preliminary matters, the mediator may give each party the opportunity to make a brief statement about his or her concerns and the matters in need of immediate resolution. Each party should be given the opportunity to make his or her statement without interruption from the other party. The other party can be assured that he or she will have an adequate opportunity to respond in turn without interruption.

 

c. ('22.7) Child Custody and Visitation Issues

Although there is no particular order in which dissolution issues must be treated, it is often helpful to resolve issues regarding the children first and then to move on to financial issues. This approach follows from the view of divorce as a restructuring of the family. Under this view, the first task before the couple is to decide how the restructured family is going to function. After the parties lay this foundation, they can plan for financial support of the restructured family.

Mediation promotes cooperative parenting by encouraging parents to realize that their relationship as parents will continue long after their relationship as husband and wife has terminated. Mediation is designed to facilitate continual communication between each parent and between the parents and the children so that the inevitable problems of parenting can be confronted and better resolved. Mediation particularly lends itself to the development of coparenting plans when the parents desire some form of joint custody. Even under traditional custody arrangements, mediation is well suited for developing visitation plans and addressing the problems associated with visitation.

 

Research into children=s adjustments to divorce indicates that children whose parents exhibit low levels of conflict tend to make better adjustments than do children whose parents exhibit high levels of conflict. Some evidence shows that children of divorced parents with relatively low levels of conflict between the parents tend to do better than children of nondivorced parents who exhibit relatively high levels of conflict. E. Mavis Hetherington, Divorce: A Child=s Perspective, 34 Am Psychologist 85 (1979). Thus, a mediated approach to dissolution, which tends to reduce levels of conflict in favor of cooperatively assessing the needs and abilities of the parents and the children, is more likely to promote the best interests of the child than an adversarial process that may exacerbate the conflict between the parents.

The mediated marital settlement agreement should deal with various contingencies, such as remarriage, relocation, out-of-state moves, changes in the parties= circumstances, and the changing needs of the children. The sample mediated custody agreement (see Form 22-3) illustrates such contingency planning. The mediator should stress to the parties that if problems arise in the future regarding custody and visitation which the parties are unable to resolve between themselves, the parties may return to mediation rather than litigation. Ideally, the divorcing parents will come to realize that they will have a continuing parental relationship that can be reasonably satisfying.

Practice Tip: The Oregon Judicial Department Web site includes a page with information and forms for divorce, parenting, and child custody matters. See www.ojd.state.or.us/familylaw.

d. ('22.8) Financial Issues

The lawyer-mediator who is familiar with business practice and tax law has much to offer in mediating the financial issues between the parties. Ideally, mediation should resolve issues of property division and child and spousal support after a full disclosure of pertinent financial information.

In mediating financial issues, the lawyer-mediator should first ascertain whether immediate needs must be addressed. Often one of the parties will have pressing bills or an urgent need for support. Early agreement on immediate issues can serve as a powerful demonstration to the parties of the potential gains of mediation.

Practice Tip: The mediator should congratulate the parties on reaching an interim agreement, thereby building their confidence in the process. The mediator may point out that the parties have just saved themselves the costs and attorney fees that would have been incurred in a show cause hearing for temporary support. This demonstrates to the parties the financial rewards that mediation has to offer and reinforces their motivation to cooperate.

Critics of mediation fear that the mediation process does not ensure full discovery. There is no reason why discovery should be less complete in mediation than in litigation, although the approach to discovery in mediation is different from the approach in litigation. In litigation, lawyers usually release only as much information as is necessary to comply with a request. (In practice, however, discovery in a no-fault divorce system is more relaxed and informal than in commercial litigation.) The basic premise of mediation, on the other hand, is that the parties recognize their fiduciary responsibility toward each other by making full and complete disclosure to the other. Several factors in mediation other than good faith ensure that discovery is complete.

 

First, the lawyer-mediator should review the discovery and attempt to ascertain whether full disclosure has been made. Often a review of several years of the parties= tax returns will disclose the parties= major income-producing assets. A review of the parties= financial statement made in connection with obtaining a loan is also helpful in this regard.

Second, if each party is represented by a lawyer during the mediation process (see '22.10, infra), then each party=s lawyer can determine that disclosure is reasonably complete.

Last, any agreement based on less than full disclosure of critical information is subject to being set aside by a court of law. Oregon law also allows parties to reopen a case if assets have not been adequately disclosed. See ORS 107.452. The mediator can stress these points as a means of convincing the parties of the importance of full disclosure.

In practice, only rarely will one of the parties be able to hide an asset so successfully that his or her spouse does not know about it, will the asset not appear on a tax return or financial statement, or will the party risk having a judgment set aside should the asset be discovered at a later time. It is unlikely, therefore, that such an asset stands a greater chance of being discovered in a litigated divorce than in a mediated divorce.

 

After resolving the issues facing the parties, the lawyer-mediator can prepare a marital settlement agreement. After each party=s counsel reviews the agreement, the execution of the agreement can provide a ritualistic closure of the marriage.

 

B. The Lawyer as Mediation Consultant

1. ('22.9) Referring a Client to Mediation

 

Many clients in the process of dissolution are unaware that mediation exists as an alternative to the litigated divorce. If lawyers do not inform clients of the mediation alternative, the clients may not find out about it. However, lawyers often have a financial incentive not to so advise clients, because lawyers earn fees by negotiating and trying cases. The fee for advising a client in mediation may be less than the fee for bringing that client=s case to court, but will not necessarily be less than for negotiating a settlement.

The lawyer should consider whether he or she has an ethical obligation to advise the client regarding mediation if the lawyer believes that mediation would be in the interests of the client. A lawyer must not intentionally fail to seek the lawful objectives of the client through reasonably available means permitted by law. DR 7-101(A)(1). Furthermore, the decision whether to mediate is the client=s, not the lawyer=s.

To advise the client properly, the lawyer must have a firm understanding of the advantages and disadvantages of mediation. The advantages include the benefits to the client and his or her spouse of taking an active role in structuring the divorce agreement, promoting cooperation in parenting, reducing emotional stress, lowering costs, and accelerating the process. The participants may be more likely to abide by a mediated agreement because they have created it; thus, the potential for postjudgment litigation is decreased.

Mediation may be less likely to succeed or may be disadvantageous for certain types of couples. First, mediation is unlikely to be effective if there is a significant imbalance in the bargaining power between the parties due to physical abuse or intimidation, disparity in financial sophistication or intelligence, or a behavioral or mental problem on the part of one or both of the parties.

Second, some clients are simply emotionally unprepared to accept the responsibility of mediation. They may wish to leave the entire dissolution process to their lawyer and have as little involvement as possible with the case.

 

Third, if a couple is still enmeshed, the parties may be psychologically unprepared to let go of their relationship and mediation will be unlikely to produce agreement. The hallmarks of an enmeshed couple are Aextremely high levels of conflict and ambivalence about the divorce decision.@ Kenneth Kressel, The Process of Divorce 227 (1985).

Fourth, traditional models of mediation may not be helpful for persons from certain cultural backgrounds. See, e.g., Alison Taylor & Ernest A. Sanchez, Out of the White Box, Adapting Mediation to the Needs of Hispanic and Other Minorities Within American Society, 29 Fam & Conciliation Cts Rev 114 (Apr 1991).

 

It may be very difficult for the referring lawyer to assess whether the above conditions are present because generally the lawyer will not have had the opportunity to meet the opposing party. The lawyer should describe the mediation process to the incoming client and then attempt to assess the client=s reaction. The lawyer can suggest to the client that the client discuss the possibility of mediation with his or her spouse. Whether a couple can agree to try mediation best indicates whether mediation is appropriate.

If the client expresses interest in mediation, the lawyer should provide the client with the names of several qualified mediators. The client and his or her spouse may wish to interview more than one mediator or mediation team to select one with whom they feel most comfortable.

Once a mediator has been selected, the lawyer representing each spouse should review with his or her client the agreement to mediate to make sure that the client understands the process and that the terms of the agreement are reasonable.

 

2. ('22.10) Advising the Client During Mediation

Although most mediators would agree that both participants should retain outside counsel at some point during the mediation process, some disagreement exists about the function of the advising lawyer. Some mediators prefer the parties to retain lawyers to review the marital settlement agreement at the conclusion of the mediation process. Others prefer the clients to consult with independent counsel throughout the mediation process as well as before the formal mediation process begins. The latter approach, particularly in cases of considerable financial assets, is probably the better approach for a number of reasons.

First, the advising lawyer can assist the client to understand how mediation functions as part of the divorce procedure. Most clients have only a limited understanding of the dissolution process itself, much less the relationship between mediation and divorce. Procedural issues are among the most difficult for clients to understand, and an advising lawyer can help assure that the client clearly understands the process of dissolution.

 

Second, the advising lawyer can help in formulating the client=s goals in the divorce and in identifying the issues to be mediated. Once that is done, the assisting lawyer can furnish the client with information regarding the legal rights and responsibilities associated with each issue. This can help the client reach an informed decision in mediation.

Third, the advising lawyer can help during the discovery process by assisting the client to determine the risks of full disclosure in mediation if subsequent litigation becomes necessary. See '22.18, infra. The lawyer can also be useful in reviewing the information provided by the other spouse to determine its completeness, to assist in its interpretation, and to advise the client on the client=s legal rights with regard to the assets.

Fourth, as the mediation progresses, the advising lawyer may help the client to understand the boundaries that the law sets and to develop proposals based on that understanding. One of the greatest obstacles to settling a divorce in or out of mediation is the uncertainty existing in Oregon on some substantive issues in dissolution eases. Although the parties must attempt to bargain in the shadow of the law (see '22.4, supra), the law in the dissolution area casts a short shadow. Incomplete standards or guidelines exist regarding appropriate levels of spousal support. See chapter 9, supra. Child support in Oregon is determined under the Oregon Child Support Guidelines (OAR 137-050-0320 to 137-050-0490), and the adoption of the guidelines enables the mediator to give a fairly firm opinion regarding child support, but there are no comparable guidelines governing spousal support. Case law on equitable division of property is still developing. Thus, if a client wants to know how a judge would decide his or her case, a lawyer may provide guidance, but not a definitive answer.

Fifth, there is an important psychological reason for having an advising lawyer involved from the outset. It can be empowering for a mediating party to have independent counsel available for consultation. Although the mediator may be committed to furnishing information in an impartial manner, it is psychologically important for many mediating clients to feel that they have someone who is Aon their side@ with whom they can consult confidentially in order to help develop their position and to decide when to compromise and accommodate.

Last, if the advising lawyers are involved throughout the mediation process, the review of the marital settlement agreement is more likely to be uneventful. It can be very frustrating if the mediating clients reach agreement in mediation, their agreement is reduced to writing, and then one or both of the parties= lawyers begin raising objections to it at a stage when both parties may be strongly psychologically committed to the agreement. At a minimum, the consulting lawyer should review the marital settlement agreement while the parties call it a Adraft.@

No matter what stage of the mediation process at which the advising lawyer becomes involved, the lawyer must keep in mind that he or she has a difficult role that may critically affect the success of the mediation process. Although the lawyer has the general ethical duty to zealously represent the interests of his or her client within the bounds of the law, the advising lawyer must recognize that in the dissolution proceeding a client=s interests cannot be stated purely as a matter of dollars and cents. The lawyer who negotiates the optimal financial settlement for the client, but who in the process manages to alienate the opposing spouse so that the client is doomed to a perpetual struggle in enforcing the judgment, may not have optimally represented the client=s interests. The lawyer also should consider the consequences of a bitter struggle over finances in the ongoing relationship of the parties as parents.

Thus, throughout the mediation process, the advising lawyer is guided by the concept of client-directed decision-making and the client=s need for autonomy. The lawyer must be able to respect the client=s need for self-direction in resolving issues, recognizing that a client may wish to compromise certain positions in order to achieve others. A client in mediation may wish nothing more from his or her lawyer than an assurance that what the client is agreeing to is broadly within the range of what a judge might order, even though the outcome may not represent the greatest victory the lawyer could envision achieving through the litigation process. The appropriate test is whether the proposed mediated agreement is Agood enough@ not to risk the financial and emotional uncertainties of going to court and exacerbating the problems of the relationship.

Lawyers who represent clients in the mediation process are increasingly using special fee agreements that make clear the limited scope of their representation. A lawyer who does not desire to represent a client in litigation if the mediation fails should use such an agreement. For a form of consulting lawyer agreement, see Form 22-4.

 

3. ('22.11) Drafting and Reviewing a Mediated Agreement

A mediated marital settlement agreement should reflect the parties= informed choices and meet all the legal requirements for such a document. For guidance in drafting such an agreement, see chapter 14, supra. However, a settlement agreement based on a process of mediation may include provisions that are more flexible and more difficult to enforce than lawyer-negotiated agreements. The advising lawyer must be careful to explain any uncertainty relating to acceptance of the agreement by a court or potential problems with postjudgment enforcement.

The final agreement may be drafted by the lawyer-mediator or by one of the consulting lawyers. In the former case, the consulting lawyer must advise the client whether to sign the agreement as presented. The consulting lawyer should ascertain that the client understands his or her legal rights and that the client is satisfied with the way the agreement protects those rights. The consulting lawyer also should determine whether the mediator was free of strong biases and was fair to both parties. The reviewing lawyer is then in a position to make sure that the client=s interests are protected while giving full weight to the client=s need to arrive at decisions that meet his or her own sense of fairness. The reviewing lawyer must inform the client whether the points of agreement are within legal boundaries, although the lawyer is not required to insist that the agreement be within those boundaries if the client understands the agreement and is satisfied with its fairness. It is important to refrain from second-guessing the client or asserting the Aright@ outcome.

C. ('22.12) Comediation

Recognizing that mediation is an interdisciplinary skill, many lawyers will feel more comfortable working as part of a team with a mental health professional. This approach is particularly useful in the following situations.

 

First, when the parties have children, particularly when they desire to develop some type of coparenting plan, a mental health professional can be invaluable in developing a workable plan that will meet the needs of the parties and their children. If the children are reacting to the stresses of the dissolution, a mental health professional often can help devise strategies to alleviate these stresses. The mediating couple may wish the mental health professionalBmediator to see the children in order to ascertain the children=s reaction to a given coparenting plan. In short, the mental health professional can guide a couple in acquiring the necessary cooperative skills to deal with children, which is guidance a lawyer is simply not trained to provide.

Second, one of the greatest obstacles to mediation stems from the parties= inability to communicate with each other calmly and rationally. The mental health professionalBmediator can be instrumental in helping the parties to dissipate their anger toward each other, isolating unproductive patterns of communication that lead to argument, and, in general, helping to improve the parties= communication skills to the point at which communications can flow more smoothly. Lawyers may lack the requisite training to facilitate communication between a couple in the heat of a dissolution.

Third, a mental health professional is useful in identifying cases in which mediation may be inappropriate for a particular couple. For example, a mental health professional may be able to detect imbalances in bargaining power or an emotional disturbance on the part of one party that would make mediation inappropriate. Also, the mental health professional may be able to assess, with greater accuracy than a lawyer, which parties will be unable to successfully mediate their dissolution.

Fourth, mediation can be difficult and complex work. Pairing up as a team allows for a division of labor and provides another observer to help assess the dynamics of the process and the approach that work best. A mediation team that consists of a man and a woman avoids a gender triangle.

 

Comediation is subject to its own set of ethical and professional considerations. For a more detailed discussion, see '22.19, infra.

 

III. ETHICAL AND PROFESSIONAL ISSUES

A. ('22.13) In General

Mediation can give rise to difficult ethical questions. Although a detailed examination of ethical and professional issues is beyond the scope of this chapter, the chapter briefly discusses the central issues so that lawyer-mediators may be alerted to the difficult problems in the area.

 

Bar associations throughout the country have been concerned that lawyers who mediate not run afoul of the prohibition against representing conflicting interests. EC 5-1 under Canon 5 of the 1969 Model Code of Professional Responsibility (the AModel Code@) states, AThe professional judgment of a lawyer should be exercised . . . solely for the benefit of his client and free of compromising influences and loyalties.@ Tension exists between the adversarial norm expressed in the Model Code and the joint problem-solving premise on which mediation is based. Bar ethics committees in a majority of jurisdictions that have considered the propriety of lawyers serving as mediators have issued cautious rulings allowing the practice. Not all states, however, allow lawyers to serve as mediators. See Sandra E. Purnell, The Attorney as MediatorCInherent Conflict of Interest? 32 UCLA L Rev 986 (1985).

Most existing rulings on the ethics of lawyer mediation are based on state adaptations and interpretations of the Model Code. The Model Rules of Professional Conduct, approved by the ABA in 1983, recognize the distinct function of a lawyer as a Acounselor@ as well as an Aadvocate.@ Serving multiple clients as an intermediary is addressed in Model Rule 2.2, which prescribes the circumstances in which a lawyer may ethically act as an intermediary.

B. ('22.14) Oregon=s Ethical Guidelines

In Oregon, the lawyer-mediator=s conduct is largely governed by DR 5-106, which has been substantially amended three times. It is worth tracking the amendments in order to understand the changing role of the mediator in Oregon over the last 20 years.

Before 1991, former DR 5-106(A)(2) prohibited a lawyer-mediator from giving advice to only one party. In 1991, DR 5-106 was amended to eliminate that provision for two reasons. First, many mediators had argued that the former rule unduly restricted the lawyer-mediator=s ability to caucus with each party. Second, the revised rule reflected the policy that the lawyer=s role as mediator was nonrepresentational and that therefore the lawyer-mediator should not be giving legal advice at all, whether to both parties or to one party alone.

Some lawyer-mediators try to make a distinction between giving legal information and giving legal advice. Legal information is factual information about the dissolution process or the state of the law. For example, explaining to the parties that ORS 107.105(1)(f) states that a retirement plan is considered property is giving legal information. Legal advice consists of giving more specific factual information to a party or parties based on an analysis of the facts and circumstances of a party=s particular case. Attempting to predict how a court might dispose a particular interest in a retirement plan, given the length of the parties= marriage, their other property, and other facts and circumstances of their case, counts as legal advice. The boundary between legal information and advice is blurry at best. The lawyer- mediator is well advised to err on the side of giving legal information only and not advice, whether to one party or both.

DR 5-106(B) was amended in 1998 to allow the mediator to file a settlement agreement in a court of law 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 those 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 amendment was controversial from its inception. Mediators tended to argue that the revision had either gone too far or not far enough. Those in the Agone 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 Anot 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 Oregon 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 AA 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, Awith 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 Arecommend 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. A lawyer-mediator Amust clearly inform the parties of and obtain the parties= consent to the lawyer=s role as mediator.@ DR 5-106(A)(2). A lawyer serving as a mediator Ashall 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.

Practice Tip: To avoid even the appearance of representing a party, a lawyer-mediator who is filing divorce pleadings for a couple in mediation should draft all pleadings in the form of a copetition. A lawyer is generally not allowed to represent copetitioners in a divorce proceeding. See OSB Legal Ethics Op No 1991-86. However, the lawyer-mediator is not acting in a representative capacity so the lawyer-mediator apparently does not run afoul of any ethical rule in filing a copetition for the parties.

 

A[W]hen a lawyer is serving or has served as a mediator in a matter, a member of the lawyer=s firm may accept or continue the representation of a party in the matter in mediation 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).

 

C. ('22.15) Standards of Practice

Apart from the guidelines set forth in Oregon=s DRs, a number of different standards of practice could govern lawyer-mediator behavior. The following is by no means a complete list. Mediators and consumers of mediation services would be well advised to think about which of these standards apply to a particular mediator=s practice.

(1) Oregon Mediation Association Standards of Practice. Members of the Oregon Mediation Association must subscribe to the OMA Standards of Practice. These standards have been incorporated into the qualification requirements for ORS chapter 36 (court panel mediators). See OAR 718-040-0100. These standards are prominent within Oregon as a means of regulating mediator conduct.

(2) ABA Model Rules. The American Bar Association in 1984 adopted a highly influential comprehensive set of standards entitled Standards of Practice for Lawyer Mediators in Family Law Disputes. These standards have since been amplified by the ABA Dispute Resolution and Litigation Sections. These sections have endorsed the new ABA/AAA/SPIDR Model Standards of Conduct for mediators.

(3) Academy of Family Mediators. The Academy of Family Mediators and the Association of Family Conciliation Courts have adopted standards of practice for divorce and family mediation. These continue to be central standards for divorce and mediation. The Academy of Family Mediators has now merged with SPIDR and another organization known as CREnet to form the Association for Conflict Resolution. This umbrella organization was created in 2001 and has not yet adopted any new mediation standards. See www.acresolution.org.

D. Specific Issues

 

1. ('22.16) Fairness

The mediator has a continuing obligation to encourage the parties to deal fairly with each other. The greatest danger in mediation is that one party will be overwhelmed by the other due to an imbalance in bargaining power. The mediator should take several precautions to guard against this happening.

First, the mediator should assure that the dialogue is reasonably balanced and try to prevent any manipulation or intimidation by either party. If the mediator believes that an agreement on reasonable terms is unlikely, the mediator should terminate the mediation and encourage the parties to pursue their rights through independent counsel.

Second, the mediator should inform the parties at the beginning of the process that they should seek the advice of independent legal counsel who should be used throughout the process and before the formation of any agreement. The mediator must inform the parties that the mediator cannot represent either or both of them in the marital dissolution proceeding.

Last, the mediator must remain impartial throughout the mediation process. A mediator who has represented one of the parties separately before the mediation should not undertake the mediation. The mediator must disclose to the parties any strong views relating to the issues to be mediated and must remain neutral while raising questions about the fairness of any proposed options for settlement. The mediator may not discuss mediation issues with either party alone or with any third party without the consent of the parties.

 

2. ('22.17) Disclosure

The mediator should encourage full financial disclosure. In addition, a mediator should determine that both parties understand the financial information before signing the agreement. These tasks are facilitated when both parties are represented by lawyers. For a discussion of discovery during the mediation process, see '22.8, supra.

3. ('22.18) Confidentiality and Privilege

A recurrent concern in mediation is that one of the parties will be damaged by disclosing information during mediation that the other party will use against him or her should mediation break down. Although subsequent disclosure can be restricted by contract and is probably inadmissible as Acompromise negotiations@ under OEC 408(1)(b), nondisclosure cannot be guaranteed in the absence of statutory provisions.

Those provisions now exist in Oregon: ORS 107.785(2) provides confidentiality for mediation and creates a testimonial privilege for the parties in mediation and for the mediator in court-connected mediation. The statute expressly eliminates confidentiality exceptions otherwise applicable to lawyer-client communications and thus creates an absolute testimonial privilege for mediation proceedings.

 

Confidentiality rules are set forth in ORS 36.220B36.238. The statutory scheme applies to all mediations, whether or not the parties execute a written confidentiality agreement. The mediator retains the right to refuse to testify even if all parties waive confidentiality. ORS 36.222(3). A settlement agreement produced by a mediator is not confidential unless the parties agree otherwise, and there must be a written agreement if any part of the mediation is not to be confidential. The word confidential is not defined in the statutes. Read strictly, in the family law context the statute could prevent clients in mediation from speaking to their own lawyers (not to mention their friends and relatives) about the mediation. Obviously, the statute cannot mean this.

Given some of the ambiguities of the statutory scheme, it is helpful to include detailed confidentiality provisions in a mediation services agreement. The written agreement should characterize the mediation process as settlement negotiations not admissible in court. First, there should be some mention of any possible exceptions to confidentiality, such as the lawyer=s duty to report child abuse. Mediation clients should be alerted to this issue. It is also useful to discuss disclosure of elder abuse or reporting threats of violence or intent to commit a future crime.

Second, a mediator may wish to specifically reserve the right to speak with the parties= lawyers, accountants, or other agents. If the agreement does not contain such language, the mediator may need to obtain a written release from the clients before communicating with the clients= agents.

A third difficult area involves confidentiality during caucusing. Some mediators take the position that caucuses are confidential between the mediator and the caucusing party. Some mediators take the opposite view: no communications are confidential during caucuses between the mediator and the opposite party. Other mediators take an intermediate view, which is that caucuses will be confidential unless the caucus gives rise to a fact that is of material importance to the other party. In this case, the mediator may reserve the right to disclose the material fact to the other party or terminate the mediation. The mediator should consider which of these positions reflects his or her actual practice and amend the mediation agreement accordingly. See Form 22-2, &7.4.

In Bidwell and Bidwell, 173 Or App 288, 21 P3d 161, rev. denied, 332 Or 305 (2001), the wife petitioned for attorney fees pursuant to a divorce case. She submitted an affidavit in which her lawyer asserted that the husband had not pursued settlement in a reasonable manner. The affidavit incorporated letters from the parties= lawyer which were sent while an appeal was held in abeyance pending mediation. The husband contended that the letters were mediation communication within the meaning of ORS 36.220 and 36.222. After painstaking analysis, the court agreed that the letters were mediation communication and were confidential under ORS 36.220(1)(a), regardless of whether they were specifically prepared for use in mediation.

In Reich and Reich, 176 Or App 442, 444, 32 P3d 904 (2001), the court addressed Awhether evidence derived from an unsuccessful mediation [was] admissible in support of a motion to dismiss an appeal arising from a subsequent settlement.@ The court held that Aconfidential mediation communications may not be offered as evidence in support of a motion to enforce a subsequent settlement agreement not arising from the mediation.@ Reich, supra. The wife had argued that mediation communications can be offered to enforce an agreement that arose from the mediation. ORS 36.222(4). The court rejected the wife=s argument because the wife offered mediation communication for the purpose of enforcing a settlement agreement entered into by the parties themselves long after the attempted mediation had failed. Confidential mediation communications may not be offered for that purpose.

4. ('22.19) Comediation

Lawyers may not be members of a mediation business partnership with nonlawyer members if any of the partnership activities include the practice of law. OSB Legal Ethics Op No 1991-101. Furthermore, lawyers may not divide legal fees with nonlawyers. DR 3-102. As a result, lawyers and nonlawyers who are to work together as family mediators must work as independent contractors who provide their respective services to family mediation clients and bill separately for those services. Moreover, a comediation team might run afoul of the dictates of Canon 3, which require a lawyer to assist in the prevention of unauthorized law practice by the mental health professional.

Comment: It seems odd that the restrictions of Canon 3 should impede the use of interdisciplinary mediation teams, since one of the very purposes of the team approach is to cure the potential for unauthorized practice.

 

IV. COURT-CONNECTED MEDIATION

A. ('22.20) In General

 

Several counties have adopted local court rules mandating mediation of custody and visitation disputes. Counties may require custody and visitation mediation. ORS 107.755B107.785. The service is funded with additional filing fees and marriage license fees. ORS 21.112, 107.615. The adoption of mandatory mediation stems from the recognition that the adversary system should be the last resort for resolving issues of parent-child relationships. In jurisdictions with mandatory mediation rules, the parties must meet with a mediator to attempt to resolve custody and visitation issues before a court hearing on these issues.

The court may appoint individuals or panels or designate programs to assist the court in creating parenting plans or resolving disputes regarding parenting time. ORS 107.425. The services provided to the court by these individuals or panels include gathering information, monitoring compliance with court orders, providing parents, lawyers, and the court with recommendations for new or modified parenting-time provisions, and providing parents with problem-solving conflict management services and parenting-time coordination services. Presiding judges of each judicial district are directed to establish qualifications for the appointment and training of individuals and the panel and the designation of programs under this statute. These services envisioned by the amendment could include mediation services as well as more evaluative and didactic services.

 

B. ('22.21) Procedure

Although details of the mediation procedure vary according to local court rules, mediation functions similarly in all the jurisdictions that mandate mediation. Generally, the parties may commence mediation either by stipulation or by request of one parent.

If both parties wish to engage in mediation regarding a custody or visitation issue, both parents or their lawyers may sign and file with the court a stipulated request for mediation (see Form 22-5). The court refers the parents to a mediator provided by the court, or the parents may stipulate to an independent mediator.

 

If the parties do not agree to mediate but there is a disagreement between the parents concerning custody or visitation at any stage of a divorce proceeding, the parent seeking to resolve the matter must file with the court and serve on the other parent or that parent=s lawyer a request for mediation (see Form 22-6). Following service of the request, the court refers both parents to a mediator.

On being referred to the mediator under either of the above procedures, the parties proceed with mediation of custody and visitation issues until an agreement is reached or until the parties are at an impasse. If the parties are at an impasse, the mediator notifies the court. The case is then scheduled for hearing in the same court and with the same priority on the docket as though there had been no mediation. This procedure minimizes the possibility that mediation will be used by either parent in bad faith for the purpose of delay.

If the mediation is successful and the parties reach agreement, the mediator memorializes the agreement, which is then placed in the form of an order by one of the lawyers for the parties. If mediation is unsuccessful and the parties are referred to a counselor for a custody or visitation study, the counselor assigned to the study cannot be the same person who has served as a mediator for the parties unless the parties give their written consent. This rule helps protect the confidentiality of the mediation session and helps promote candor between the parties during mediation.

Although court-connected mediation is formally concerned only with custody and visitation issues, in some jurisdictions the mediators may mediate limited financial issues if the parties so agree. ORS 107.765(1).

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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