Eleven Questions Most Commonly Asked About Mediation

Most lists contain numbers of items that have a traditional context — 7, 10, or 20.
A list of twelve even has a ring to it. But eleven?

In mediation, people can customize their process and their agreements. They don’t
have to be controlled by a system designed for 1 size to fit all.

I tried to fit the questions into a series of ten, but eleven just seemed to work better.

QUESTION 1:

IF BOTH LAWYERS ARE SETTLEMENT MINDED, WHY SHOULD WE SPEND
MONEY FOR YET ANOTHER PROFESSIONAL AND HIRE A MEDIATOR?

If the lawyers can work together and settle the case quickly, amicably, and
inexpensively, perhaps mediation is not needed in that case. Quite often, their role of
adversary professional causes many lawyers to respond aggressively or initiate preemptive
strikes that the other party finds threatening. It is difficult for a lawyer to take care of a
client and to play a mediative role at the same time. If lawyers do most if not all the
negotiating, the parties themselves do not experience direct communication with the other
party to make their own agreement — which may also improve their future interaction
down the road. Using a mediator might be like taking out an insurance policy to maintain
an amicable situation between all parties and counsel. It also affords the family the benefit
of a trained innovative problem solver. Finally, as Baruch, Bush and Folger (“The
Promise of Mediation”, 1994) and others have argued, the use of mediation can be a
transformative experience that may actually improve the interaction and lives of the family
members instead of just putting a settlement Band-Aid on family dysfunction.

QUESTION 2:

ISN’T MEDIATION JUST ANOTHER FORM OF ONE ATTORNEY HAVING
DUAL REPRESENTATION OF TWO PARTIES WITH ALL THE LIMITATIONS
THAT SUCH CONFLICT SITUATIONS BRING WITH THEM?

It is true that in preventive mediations involved in premarital agreements,
adoptions and putting together a family business , the mediator’s role of
putting together and building harmonious relationships seems very much like dual. In
representing two clients, a single lawyer must withdraw if conflicts appear irreconcilable
unless there is a written waiver from all parties. Conflicts, real or apparent are generally
present in virtually all dual representational situations.

As a third party neutral, the mediator represents neither party. This may be clearer
in the mediator’s role of dispute resolver and case manager than it is in preventive
mediation. The new Standards of Conduct for Mediators promulgated by the ABA.
American Arbitration Association, and Society for Professionals of Dispute Resolution
encourage all parties in a mediation to consult independent counsel. In many mediations,
counsel attend sessions with their clients and participate at the mediation table.

QUESTION 3:

DO I HAVE LEGAL MALPRACTICE EXPOSURE IF I SIGN OFF ON AN
AGREEMENT THAT IS ACTUALLY WORKED OUT IN MEDIATION WHEN I’M
NOT THERE?

There is malpractice exposure for a lawyer who gives wrong advice or
recommends settlement based on inadequate information. It is also true that lawyers who
are doing their job to promote settlement never have all necessary information. We cut
corners all the time. If we didn’t, fewer cases would settle. Transaction costs and litigated
conflict can destroy a family – to say nothing of overunning the courts! The issue isn’t
whether corners are cut; but which ones are cut and how important are they. Successful
mediation depends on adequate information being disclosed and there are numerous
strategies that an attorney can take in mediation to assure adequate disclosure. Finally,
clients who mediate have higher satisfaction and are more involved in their own divorces
so they are less likely to sue their lawyers.

QUESTION 4:

I HAVE SPENT YEARS LEARNING THE LAW AND CRAFT OF REPRESENTING
CLIENTS. I HAVE SEEN GROSS UNFAIRNESS AS A RESULT OF UNTRAINED
AND INEXPERIENCED MEDIATORS, MANY OF WHOM PROBABLY HAVE
NEVER READ A REPORTED DECISION. WHY SHOULD I EVER REFER
ANOTHER CASE TO MEDIATION? COULD I BE SUED FOR GIVING A
NEGLIGENT REFERRAL?

If the client is referred out to an unqualified mediator and there is an

unjust result or process, the lawyer could be liable for professional negligence. However, a
failure to disclose appropriate options to litigation could also bring on malpractice and
disciplinary exposure. There is growing movement to assess and certify mediator
competency and to expand mediation training programs. However, it is the lawyer’s
obligation to play a role in selecting the mediator and to play a proactive role during the
process. Turning away clients who want mediation could mean turning down an
increasingly growing source of revenue.

QUESTION 5:

WITH ALL THE ECONOMIC PRESSURES ON MY PRACTICE, WILL THE
GROWTH OF MEDIATION CUT INTO MY INCOME?

Actually, representing clients in mediation and offering mediation related service products
can add new clients and help the lawyer improve collections on fees earned. Most family
law attorneys do not get paid for approximately 30% of the work they perform in litigated
matters. Lawyers who use mediation to settle their cases collect over 90% of their fees
billed. (See Chapters 4 and 15-20).

QUESTION 6:

I HAVE BEEN SUCCESSFULLY NEGOTIATING SETTLEMENTS FOR MANY
YEARS AND HAVE BEEN TO HUNDREDS OF SETTLEMENT CONFERENCES.
CAN I START BEING A MEDIATOR AND CHARGE MY CUSTOMARYHOURLY
RATE?

You can. Currently there is no state regulation of mediation and no requirement
for training. However, you might find that you could enrich your mediation craft by
taking some training as it is very different than traditional law school education and
continuing legal education seminars. You would be required to role-play in simulated
settings and participate in other active training that is a far cry from a panel of experts
giving lectures. While there is certainly a demand for lawyer-mediators with substantive
knowledge and law practice experience, there are other effective styles of mediation being
used. Also there are significant differences in the settlement process between court
mandatory settlement conferences and mediation.

QUESTION 7:

I CAN UNDERSTAND SENDING AMICABLE COUPLES TO MEDIATION. BUT
IT SEEMS THAT MY ENTIRE CASE ROSTER CONSISTS OF HIGH CONFLICT
CAREER CASES IN WHICH I SPEND SO MUCH TIME IN COURT THAT I
SHOULD RENT A COT IN THE COURTHOUSE. HOW CAN MEDIATION HELP
IN THESE DISASTERS?

Since over 90% of cases settle, the issue isn’t whether it will settle, but when, how,
and with what transaction costs will the settlement occur. Many jurisdictions now have
mandatory mediation on both parenting and economic issues. In litigation horror stories,
lawyers are often the victims because of lost stomach lining, unsatisfied clients, and unpaid
receivables. A major, but less known function of mediators is to provide consensual case
management that can put some structure onto such runaway chaos and still give lawyers
the freedom of traditional advocacy that judicial case management can take away.

QUESTION 8:

I’VE HEARD THAT SOME MEDIATORS ARE CHARGING FEES THAT ARE
EVEN HIGHER THAN MINE. THERE IS NOT ENOUGH MONEY IN THE CASE
TO HIRE YET ANOTHER LAWYER. CAN MEDIATORS JUSTIFY THEIR FEES
WHEN TWO COMPETENT LAWYERS ARE ALREADY WORKING TOWARD
SETTLEMENT?

Some mediators may overcharge and others may not produce a process or a result
that is worth the expenditure of scarce client resources. However, even with the use of a
mediator and independent consulting attorneys, the cost of a mediated divorce is not
higher, and may actually be far lower than a case directly negotiated between two lawyers.
It is certainly lower than litigated divorces. Even co-mediated divorces do not increase
fees compared to negotiated divorces and parties may have the benefits of an
interdisciplinary (lawyer-psychologist or lawyer-CPA) inter gender team that can often
bring settlement faster and more comprehensively than working with a sole mediator.

QUESTION 9:

I KNOW THAT MEDIATORS SHOULD NOT GIVE LEGAL ADVICE. HOW CAN
PARTIES MAKE A MEANINGFUL AGREEMENT IF THEY DON’T KNOW THE
LAW?

You are correct that a neutral mediator should not give advice — that is tell the
client what to do or what decisions to make. However, mediators differ in the amount of
legal information that they provide. Even if a mediator does give legal information (cases,
statutes, tax laws, procedure, support guideline calculations), most clients benefit from
individual legal advice and negotiation coaching from an independent family lawyer.

QUESTION 10:

I HAVE HEARD THAT GOING INTO MEDIATION REQUIRES A VERY
DIFFERENT OFFICE SET-UP THAN I CURRENTLY HAVE? HOW DO I SET UP
A MEDIATION PRACTICE?

First, take the pressure off yourself. Many mediators do so as a part-time
supplement to their law practice. Other lawyers who want to make a career switch to
mediation do so over a long period of time working of their law office space. There are a
number of tips to setting up a mediation friendly office that can be implemented whether
you choose to mediate (full or part time), desire to become more active in representing
clients in mediation or choose to offer mediation related service products in addition to
full service adversarial representation. Marketing in these emerging areas requires a
different emphasis and orientation which can also help your existing law practice.

QUESTION 11:

I JUST GOT MY FIRST MEDIATION CASE. WHAT DO I DO?

Assuming that you have had sufficient training and you feel comfortable holding
yourself out as a mediator, take a deep breath and look forward to a stimulating and
satisfying experience. Perhaps you might decide to retain a more experienced mediator
supervisor with whom you can consult or join a mediation study group to get direction
and professional support. You can review the current standards of competency or you
might want to review some of the mediator training treatises in the bibliography. Good
luck. And remember: it’s probably not as frightening as your first case as a lawyer and it
is the parties’ mediation not yours. They will probably help you out.

                        author

Forrest (Woody) Mosten

Forrest (Woody) Mosten Forrest (Woody) Mosten has been in private practice as a mediator since 1979 and currently is practicing mediation and collaborative law 100% online serving clients throughout the world. Woody is a founding partner of the Mosten-Guthrie Online Training Academy for Mediators and Collaborative Professionals. He is Adjunct Professor… MORE >

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