How To Represent Parties Who Choose Private Divorce Mediation

As private
mediation becomes an accepted method of resolving the issues presented in a
divorce, increasing numbers of clients are asking lawyers to provide a new kind
of service, as “consulting counsel” for them in the mediation. Since most
clients in mediation choose to confer with legal counsel at some point in the
process, this has created a new area of practice for family lawyers. And it has
raised significant questions concerning how to practice in this new field. The purpose of this article is to help
family lawyers to define this new role.

Clients now
seek the services of lawyers who are knowledgeable and supportive of mediation,
and who posses the skills and knowledge base to work effectively as consulting
counsel. Lawyers often play a proactive and very important role in mediation.
Stated broadly, the basic aim for consulting counsel is to offer information,
assistance, and advice to a party to assure that he or she makes good
decisions, based upon a full understanding of the law and possible outcomes.

A lawyer
asked to perform the role of consulting counsel in private divorce mediation
has to address several issues:

§
How to define, with the client, the scope of counsel’s
work, including the bounds of discovery?

§
How does the advice given, as well as counsel’s
demeanor and views concerning possible negotiating strategies and settlements,
differ from an adversarial representation?

§
Should counsel file an appearance with the court, and,
if so, at what point in the process?

§
What kind of retainer letter is required for consulting
counsel engagements, and how should it differ from the usual adversarial
retainer letter?

§
How to cope with having less control over the case, in
terms of process and settlements, as this relates to malpractice liability?

§
How to handle the ‘business end’ of consulting
engagements, such as billing?

Lawyers pose
these questions constantly. It is hard for them to know the answers because
they are trained primarily to be effective representatives in an adversary
system of law. Though more schools now offer courses in alternative dispute
resolution, and many offer clinical courses in mediation, anyone who has
attended law school knows that American legal education focuses primarily upon
honing adversary skills, through reading and discussing litigated cases, as
well as through clinical work.

It is my
intention, through this article, to provide family lawyers with answers to
these questions. Specifically, I want to lay out a basic outline of practice
for attorneys who represent clients using private mediation when counsel does
not attend or participate directly in most mediation meetings. A secondary
purpose is to help clients considering choosing mediation to clarify their
expectations for consulting counsel’s important role in the process.

Private Divorce Mediation

There is no
single model of mediation. Basically, private divorce mediation is a voluntary
process in which a neutral professional helps the parties resolve the issues
they want to resolve. By its nature mediation is a flexible, adaptable process
that can be used in a broad range of contexts to resolve a variety of
conflicts. Nonetheless, for purposes of this article it is important to lay out
the basic mediation framework under discussion.

It is
important to emphasize that by ‘private mediation’ I refer to a voluntary
process. While in some jurisdictions divorcing spouses are required to attend
mediation meetings — especially when custody issues remain unresolved — this
article focuses on the majority of situations, in which the parties use private
mediation voluntarily. Private mediation can be used to develop a complete
divorce settlement, or to resolve just one or a few issues, such as custody,
property division or alimony.

The
mediations most often occur at the mediator’s office because it is a neutral
site, which presumably favors neither party over the other. Ordinarily, most
discussions are conducted in joint session, with both clients present in the
mediation room at the same time. However, sometimes the mediator may choose to
talk briefly with each party in separate meetings, which are called ‘caucuses.’[2]

Consulting
counsel usually works with his or her client in between mediation meetings, and
is most often not present at the actual mediation meetings. This is not to say
that counsel is per se excluded from
meetings. There are times when the presence of one or both attorneys is useful,
especially at the end of the mediation, when agreements are being finalized or
specific options evaluated.

The mediator
is a neutral professional. By ‘neutral’ I do not mean that the mediator does
not have any point of view or opinions; we all have those. Rather it means that
the mediator does not actively take the side of either party, such as by
strategizing with one against the other, or helping one to get the best deal
for him- or herself only. Equally important, mediators, as opposed to
arbitrators, do not have the authority to impose a settlement. Instead, the
mediator’s purpose is to help the parties develop a settlement that works well
for them and their children, and which will result in as few post-divorce
problems as possible for everyone concerned. In some cases the parties will give
the mediator the power to make recommendations, but this is not currently done
on a wide scale in most areas.

When the mediator
is an attorney licensed to practice law in the jurisdiction, and when permitted[3],
he or she often drafts the legal agreement encompassing the parties’
agreements, most often called a ‘separation agreement.’ This is done for at
least two reasons, both client-driven. First, clients often ask attorney
mediators to draft settlement agreement because they want the professional who
sat at the mediation table – and presumably best understands the nuances of the
settlement — to do the drafting. This way, the drafter can capture the
parties’ specific desires, priorities and emphases. Equally important, clients
believe that the mediating attorney has an obligation to draft neutrally,
rather than favor one client over the other through the drafting.

When the
mediator is not an attorney, he or she usually compiles a ‘memorandum of
understanding’ outlining the tentative agreements the parties have reached in
mediation. In almost every state, in order to avoid charges of unauthorized
practice of law, this document should always be a non-binding rendition of the
mediator’s best understanding of the parties’ intentions, and is often written
in the form of a letter to the parties. In any event, the memorandum of
understanding should not be anything that a reasonable person would confuse
with a legally binding agreement. The legally-binding separation agreement is
then drafted – based on the memorandum — by a licensed attorney who is either
affiliated with the mediator or is one of the parties’ consulting counsel.

Divorcing
couples use mediation for a variety of reasons. It is worth noting that quite
often parties themselves don’t agree with each other as to exactly why they
have chosen private divorce mediation — but they do agree to come to the
table. In my experience, parties choose mediation because it leaves them
feeling more in control of the decision-making, is less expensive, often faster,
and is private. Most everyone using the process also does so because it
dispenses with what they perceive to be the nasty tone of adversarial divorce;
mediation provides greater peace for the family and helps to shield children
from explosive conflict.

Consulting Counsel’s Role

As
discussed generally above, the role of consulting counsel in private divorce
mediation is to provide information, assistance, and advice to one party to
help insure that s/he makes good, durable choices based upon full information.
In some ways this does not differ all that much from the role lawyers are used
to taking in adversary representations; but in other ways it is quite
different. The similarities have mostly
to do with providing the client with information concerning the law and
possible outcomes, as well as helping the client to remain realistic about
possible settlements. The differences, as described in more detail below, have
to do with negotiating strategy, as well as who actually does the majority of
the negotiation (the client does) and who has control over the case, both in
terms of process and settlement (again, the client does).

It is worth
noting at this point that in terms of strategy, consulting counsel’s
responsibility in private divorce mediation is very different from the zealous
adversarial representation family lawyers are sometimes used to providing. The
key is to help the client, from the sidelines, to successfully conclude a
settlement that meets as many of his or her needs as completely as possible, as
well as those of the other spouse (more on this later), and which the client
believes is fair overall, based upon all reasonably available useful
information. Though a few clients will want this, in the vast majority of cases
the job is not to help the client to negotiate down to the last penny or to
crush the other spouse. Many clients will say that leaving something on the
table for the other spouse is acceptable to them if doing so moves the
settlement process along — and if the overall settlement meets their financial
needs or some other need such as a desire for finality, peace, or retention of
privacy. Lawyers should remember that as is the case in all negotiations, each
client values different things differently; given the control mediation clients
often have to develop settlements customized to their needs, this can become
especially pronounced in mediation.

Consulting
counsel is not always necessary in mediation, and some clients choose to
dispense with using an attorney of their own, which is of course their right.
However, since in the majority of cases it is a good idea for clients to have
consulting counsel, in my experience the better mediators strongly encourage
each client to retain counsel of his or her own from the outset of the mediation.
Most clients do opt to use consulting counsel at some point in the process.

There are
instances in which it is more crucial for clients to use consulting counsel.
For example, if the mediator is not an attorney, clients should have an advisor
who can fill them in on the relevant laws, how they might apply in their case,
and what might occur at trial.[4]
And they will also need someone to draft a legally binding agreement at the
conclusion of the mediation. Equally important, even if the mediator is an
attorney — and can provide some or all of these services when permitted to do
so — clients often value the individualized advice and help with strategy that
mediators, as neutrals, most often will not provide.

Each
mediation client will want a slightly different level of service from
consulting counsel, and, as described in greater detail below, consulting
counsel and the client should come to an understanding about the specific level
of service to be delivered. But lawyers should be warned that most mediation clients
do not want their consulting counsel to call all the shots or take over the
mediation. In some respects, mediation is a response to the lack of control
over decision-making that clients sometimes report feeling in litigation. So,
in most cases, the idea is to act as an outside aid to the client to facilitate
his or her own decision-making. This includes, except in special circumstances,
leaving the client in charge of the mediation process itself. Lawyers who
attempt to ‘take over’ the mediation – by insisting on attending all meetings
or being in constant contact with the mediator – rob their clients of the
autonomy which often attracted them to mediation in the first place. These
attorneys will often end up losing the representation or with a dissatisfied
client. But this does not mean to say that consulting counsel is to remain
passive throughout the case, left only to ‘rubber stamp’ the final settlement
agreement. Lawyers who do this leave their clients vulnerable to possible
overreaching by the other party, and, more important, without the crucial
advice most clients need or want. So, finding the specific balance that meets
each client’s specific needs and personality is critical, and requires some
practice. Please understand that this is not a role all lawyers wish to take;
in my area I know of at least one attorney who will not accept consulting
counsel engagements.

Consulting
counsel should keep in mind the following specific points when defining his or
her role with the client.

1. Support
the Mediation and Take a Global View of the Case
.

In most instances of which I am aware, clients usually
contact consulting counsel after having made the choice to use private
mediation, and sometimes after having begun the process. This means that the
parties have for the moment committed themselves to resolving the issues by
agreement and through mediation – and the client has come to you for
individualized help in this endeavor. However, having said this, it is often a
good idea to at least check in with the client to be sure he or she is
comfortable with the choice of mediation. For example, cases involving
substance abuse or domestic violence can require special care, and may not be
appropriate mediation cases.[5]
But this is different than second-guessing the client from the outset. Unless
you discover substantial evidence that your client has made a terrible and
irreversible mistake by being in mediation, you should support the decision to
be in mediation, at least for the moment, help your client through the process,
and never disrupt or undermine the process — even if you might have done
something different were you the client. Remember that every attorney has had
clients who have made decisions with which he or she personally disagrees but
pose no substantial danger, and nonetheless we all find a way to support the
client’s chosen course. And in my experience, lawyers who file barrages of
motions and send hostile letters can easily destroy the mediation, often to the
consternation of their own client. However, if you truly object to the
mediation or believe that you can not be of help in the way the client wants,
you should absolutely discuss this with your client. In extreme cases, you can
usually discontinue your engagement with the client, letting the client know
your reservations.

Equally important, lawyers who serve
as consulting counsel need to take a more global view of the case. This differs
from the typical adversarial approach of helping the individual client to focus
exclusively on what is to his or her best interest — regardless of the
potential disadvantages to the other spouse or the explosive effect that taking
an extreme position might have on the negotiations. This is because parties
often choose mediation because it is a less adversarial, problem-solving
approach. The goal is to work out balanced agreements that work for everyone.
This kind of result usually increases the parties’ satisfaction with the deal
(and with counsel’s services), decrease ‘deadbeat’ problems, and can reduce
substantially the need for post-divorce intervention, as clients learn how to
deal with each other in a businesslike fashion. So an outcome which is great
for one party but terrible for the other might be fine in the adversarial
setting of contested litigation, but ordinarily has no place in mediation. And
clients usually want advice from consulting counsel that is consistent with
this macro objective. Helping your client to develop solutions that will work
well for all parties are more likely to be acceptable to everyone and will help
your client to move the negotiations along successfully.

2. Define
the Scope of Your Work
.

Though
everyone seems to know someone who has been divorced, and the concept of
divorce itself is not by any means foreign to Americans, very few people know
much about the ins and outs of the divorce process itself. And what people
think they know or have heard from others is often wrong.

So you
should not assume that your consulting clients have any specific ideas
concerning the possible roles you might take as consulting counsel, or if they
do, that these notions are consistent with yours. Therefore, as in any
engagement, it’s your job to outline the possible roles you might take, what
each entails — and does not entail — and then to button down the specifics in
your engagement letter. This is especially true for clients using mediation,
for two reasons. First, since the process is so flexible, there are many
different ways to use consulting counsel, and it is important to get agreement
on this early on. Second, mediation in some areas is only beginning to see
widespread use, and clients in these areas may be less familiar with the
possible roles consulting counsel might take.

You will
likely find that given the adaptable nature of mediation, your role as
consulting counsel will differ from case to case. This is different from most
lawyers’ experience with the adversary model of litigation, in which counsel’s
role is usually more or less consistent from case to case. Some clients who use
mediation will negotiate their whole agreement and only work with consulting
counsel to go over a written settlement agreement. Others want their lawyer to
be involved from the outset in each step of the case. And still others want
counsel to perform discrete tasks, such as strategizing about the negotiations,
reviewing underlying financial information, or helping them to understand
applicable law, what a judge might do, or possible solutions. Lawyers must
remain flexible in delivering service to meet each particular client’s needs
and circumstances. Insisting that all clients work with you on your terms will
likely mean a short career as consulting counsel.

Once counsel
and client have discussed fully and agreed upon the scope of the
representation, it is extremely important to put this in writing in the form of
an engagement letter. This prevents misunderstandings and can provide important
protection for consulting counsel in the future, since in most cases the scope
of the work will be less encompassing than in a full-service representation.
Following this article are the relevant portions of my basic consulting counsel
engagement letter. Naturally, I modify this general format to meet each
client’s specific needs.

Be careful
to understand that being consulting counsel is as much about what you will not
do for the client as what you will do. In general, clients want your counsel,
knowledge, expertise and advice — but without the zealous adversary
representation. When serving as consulting counsel I often find it useful to
outline specifically in the engagement letter what I have been asked not to do.
This avoids misunderstandings as the case proceeds; by doing so I make
absolutely certain that the client understands the pieces of a full-service
representation I will not perform, so he or she can not later hold me to that
of performance having authorized me to do less.

Remember
that the client is ultimately in charge of the scope of the representation.
However, you have the right to advise the client about the dangers of unduly
restricting your work. And these dangers, if present, should be addressed in
your engagement letter. In extreme cases, you of course have the right to
refuse to undertake a representation if you feel that the client is
unreasonable in his or her expectations.

3. Crystallizing
Goals
.

Probably the most important thing any lawyer does with
any client, whether in mediation or not, is to help the client to discern his
or her goals, and to prioritize them.

Effective consulting counsel should first help clients to
uncover their objectives through a discussion of the difference between their
‘needs’ and ‘wants.’ It’s often helpful to list with the client on a chart or
board – I use a whiteboard — every possible client goal or interest either of
you can articulate, no matter how great or small, dear or unimportant.

Be sure to
do lots of probing here to discover the real underlying needs, versus positions
the client has developed to protect these interests. I do this by asking lots
of ‘why’ questions. An example might be helpful here. The wife may tell me that
she wants to keep the house. Seems simple enough — you would tell me to write
on the whiteboard that her goal is to keep the house. But I’m not satisfied
with this, which I view as a position created to protect an underlying need. I
would ask her why she wants to keep the house. Possible answers are to keep the
kids in the same schools, to preserve overall stability, or to live in a home
she knows she can afford (if this were the case). These are the underlying
goals and interests. And unlike the position – keep the house – these interests
can ordinarily be met in a variety of different ways. For example, if keeping
the kids in the same schools is the underlying interest, then keeping the house
is one way to accomplish this, but not the only way. A house down the block or
across town might possibly accomplish the same end. So having uncovered her
true interest, the wife can be a much more flexible negotiator, because she is
less locked into an inflexible position, namely keeping the house – for which
she may have to pay dearly to protect. If keeping the house costs her too much
in the negotiations, she can now offer a different way for her to achieve the
same goal, and which costs her less and may protect more. One note on this
approach: this technique sometimes involves a good deal of probing, which some
lawyers think is too ‘touchy-feely.’ To the contrary, I suggest that the
example reveals that while it may involve ‘soft’ skills, it is actually a critical
strategic step in helping clients to get more and part with less by staying
flexible with regard to how their interests are met. And it is exactly what I
would do with any client in an adversary representation before entering the
negotiating room.

Once you and
your client have the underlying interests articulated and listed, you should
keep moving them around in order of importance until you have the desired
prioritization. So now you should have separated out the things the client
really needs – can’t live without, the dealbreakers — from the things s/he
would like to accomplish if possible.[6]
Effective consulting counsel should then help the client to develop proposals
that protect as many if not all needs, sacrificing some wants — but only if
necessary to preserve the needs. As the negotiations move along, you will
likely find the need to meet again to reorder goals, subtract some, add new
ones or to adjust strategy.

Some say
that negotiation is about changing minds, and to do so effectively, the skillful
negotiator must know not only his or her mind, but that of the other party.
Given this, it is equally important to address with the client his or her
spouse’s underlying goals, needs and wants – in essence, to do the same
exercise outlined above, but with respect to the spouse. This global or macro
view of the case (described above under “Support the Mediation and Take a
Global View of the Case”) will enable your client to develop solutions that
meet his or her interests first, but are also acceptable to the other party,
and will result in more durable agreements requiring less post-divorce
intervention.

Mediation
clients especially appreciate this approach, as it dispenses with much of the
positioning and jockeying that they have chosen mediation to avoid in the first
place. I also find that clients who use this approach usually get better deals
for themselves, since it allows them to frame agreements with which the other
party can agree, but in a way which better meets their own needs and wants.

Should your client’s goals be less than the law might allow, you should
deliver this information to your client, but without making the client feel as
if he or she is about to make an unbelievably fatal mistake. Your job is to
make sure that your client is operating with full information. On this point it
is important to note that the adversary system usually values one form of
compensation above all others – money. And since most attorneys in the United
States are trained primarily to use the adversary system, they tend to share
this view. However, you should be aware that your consulting client might have
something different in mind. Non-monetary or psychological compensation may be
just as important to him or her as is money, especially given the emotionally
charged nature of divorce. And this might have been part of the reason to use
mediation, which many believe is a forum in which this type of value is more
easily realized and delivered. For example, receiving an apology or getting a
peaceful outcome may outweigh negotiating down to the last dime. The reverse
may be true, too – getting revenge may be more important that striking a fair
deal. The key is to understand that non-monetary compensation may be important
to your consulting client, and you should look out for this. I often ask my
consulting clients whether there is anything in addition to money that they
want out of the negotiation. This is not to say that a client should entirely
capitulate on financial issues just to create a peaceful outcome. Rather, the
non-monetary compensation may be part of your consulting client’s calculus, and
you should be aware of it.

A final
point — remember that in strategizing about the negotiation, the key is to
avoid encouraging gamesmanship. Your client has come to you for help in
resolving the issues, not to ratchet up the conflict. Your role is to help your
client reach a fair and reasonable settlement with as little expense and damage
to the family as possible. If you achieve this goal, your client will be
grateful and refer other clients to you.

4. Educate
the Client

Consulting counsel should play a major role in helping
the client to have full information concerning three items, in time order: (a)
the process of mediation itself, (b) the suitability of mediation for his or
her case, and (c) the underlying law. I take each in order.

(a) Mediation is a flexible, adaptable process.
This feature distinguishes mediation from most other forms of dispute
resolution; it can be molded to meet the specific needs of each situation. But
this versatility also means that no two people in a given situation – including
the mediator, the client or consulting counsel — will likely share the exact
notion of how mediation will be used in that instance. While many mediators
will educate the client about the process itself and how they usually practice
mediation, consulting counsel should take an active role in helping the client
to understand some of the key variables, and to be sure that the client, the
mediator and the other party agree on the process before beginning. Probably
most important, clients should discuss with the mediator and the other party
whether the mediator will follow a facilitative model – acting solely as
intermediary without commenting on the substance of proposals – or take a more
evaluative role, by helping clients to understand whether their proposals fall
within legal and community norms.[7]
Additionally, all concerned parties should be in basic agreement regarding
whether mediation is to be used to settle all or selected issues, such as
custody, alimony or asset distribution, and whether the mediator will
ordinarily meet with both clients together in joint meetings, or with each
separately in a “shuttle diplomacy” format; this can greatly influence the
quality and content of the negotiations. Finally, there should be a basic
understanding concerning expectations for consulting counsel — specifically,
whether they will work primarily from the outside, or be expected to attend
some or all mediation meetings.

(b) While mediation is ordinarily useful in
developing fair and durable settlements in the majority of cases, it is thought
to be an inappropriate settlement model in certain situations. For instance,
clients who have been victims of domestic violence ordinarily should not
participate in mediation when this would impair their ability to advocate for
themselves, and especially when the mediation will consist primarily of joint
meetings. Also, some clients who are so unassertive that they can’t formulate
their needs at all, or convincingly articulate their point of view, should
probably avoid choosing mediation. What is important to note here is that once
the process is buttoned down, consulting counsel should help mediation clients
to understand what will be expected of them and then to help in determining
whether mediation as articulated will be the most suitable process.

(c) Once the mediation has begun, and after
having helped the client to outline and prioritize his or her goals and needs,
consulting counsel must educate the client concerning the underlying law. Here,
your job is similar to full-service legal representation: identify the legal
issues, advise your client as to the current state of the law, and help the
client formulate a point of view. In making your client’s legal rights clear,
be sure to explain gray areas – of which there are usually many — as well as
the chances for prevailing. Be sure to be pragmatic. It is my experience that
mediation clients want realistic estimations of their position. Overstating
their case will likely cause them embarrassment or frustration during the
mediation, as well as disappointment with your judgment. And ultimately, your
client will appreciate your honesty.

This is a
very important step. Clients who have the benefit of this expertise and are
armed with realistic expectations are much better able to raise, talk about,
and decide issues, making them much more effective in the mediation. Some
family lawyers compose for their clients a brief memorandum or outline of the legal
issues, relevant legal information, strategy and possible outcomes. In some
cases these letters can be very useful in mediation when shared with an
unrepresented spouse or the mediator, especially when s/he is not an attorney.
Naturally, you do not share strategy.

I cannot
over-emphasize how important it is for consulting counsel to be a reality
tester for the client. As every family lawyer knows, many outsiders whisper
things into divorcing clients’ ears, such as what they’re absolutely entitled
to or what absolutely happens in court. More often than not, this ‘street talk’
is more hindrance than help, both to client and professional. When a client
presents clearly erroneous street talk in mediation I often refer them to
consulting counsel, who can help them to understand what really happens. This
is because clients who have extremely out-of-line understandings of the
probable legal outcome can pose substantial hurdles to the completion of an
agreement. And in my experience this information is most effectively delivered
by counsel. This is because when clients hear a more balanced picture from
their own counsel — who presumably has only their best interests at heart –
they are better able to believe it, which goes a long way toward neutralizing
the interference and realigning their expectations.

5. Get,
Produce and Digest the Documentation
.

Both parties, as well as the mediator, need useful
information to have meaningful discussions. And clearly, your client will need
sufficient financial information in order to make proper decisions concerning
support and division of property. Consulting counsel should be certain that the
each client knows what documentation is adequate to get a full understanding of
the family finances in each situation — and that no financial decisions should
be finalized until the necessary information has been received and digested.
Consulting counsel should help the client put together the list of documents
needed, such as pay stubs, tax returns and bank statements, and then carefully
review the financial information with the client.

Remember
that each case is different; and what will suffice in one case may not be
enough information in another. The key is to gauge for the client when there is
enough information, without turning over every stone if this does not add
sufficient value. This may differ somewhat from the average litigation model,
where broad interrogatories are served and then argued over. It is my
experience that mediation clients have often chosen mediation to dispense with
unnecessary discovery – specifically the kind that adds little value in
decision making.

Sometimes
your client may be reluctant to produce the necessary information. For example,
some clients think that by not disclosing an item they can ‘keep it off the
table,’ beyond discussion in the settlement. I suggest to clients that they’re
far better off providing full disclosure and then making the arguments for why
they should keep the item in question. This is so for at least two reasons.

First I
usually explain that in the end, in my state (and in many others; check your
state’s regulations) true, correct and complete financial information must be
produced and disclosed to the court on a financial affidavit, which is a sworn
statement to the court concerning assets, liabilities, income and expenses.
This is the rule in all divorces, mediated or not. I also throw in that lying
materially on a financial affidavit is an extremely dangerous thing to do that
could become grounds for reopening the case years later. So if your state has a
similar practice, this will ordinarily end the discussion with most clients.

Second, I
help the client to understand that he or she can buy lots of goodwill in the
mediation by making early and full disclosure, because this demonstrates a
concrete commitment to playing fairly. And that the refusal to disclose
information or dribbling it out extremely slowly will only make the other party
even more suspicious and twice as determined to get at the information. In
extreme cases, it could undermine the integrity and viability of the mediation.

6. A
Word About Billing

Most lawyers
are used to requiring substantial retainers at the beginning of a case, and
drawing these funds down as the case proceeds. By contrast, many mediators work
on a pay-as-you-go basis, presenting the bill at the end of each mediation
meeting and requiring settlement at the same time. And since much of the
mediation charges are for face-to-face problem solving time, many mediators
make it a habit to alert clients to times when they will perform substantial
out of meeting work for which they will be charged. Clients seem to like this
approach, as is spreads out the cost, avoids unforeseen charges, and seems to
provide them with a sense of control over the cost of the case. The mediators I
know have extremely few uncollected bills.

Clients choosing mediation may request a similar billing format from
consulting counsel, and you should be prepared to respond. The key here is in
gauging the case as best as possible and in meeting the client’s needs. When a
client wants a very limited representation, a pay-as-you-go format may be fine,
whereas a more complete representation might require a traditional
retainer-style approach. Be careful in gauging the case, as clients can be quickly
turned off when, in a fairly limited engagements, consulting counsel asks for
an unduly high retainer. This suggests that you probably do not understand the
client’s needs and may make more of the case than the client wants. Your
consulting counsel engagement agreement, which defines what you will and will
not do for the client, might provide clues as to the appropriate fee structure
in a given case.

7. Filing
Appearances
.

In most
states it isn’t necessary for consulting counsel to file a formal appearance
with the court. And in states where parties must go to court in order to obtain
a judgment of divorce, many mediation clients — having developed a sense of
empowerment and self-determination through mediation — will prefer to appear
before the court as pro se parties
where this is feasible. However, should your client want you to represent him
or her before the court, or just to file the necessary court papers in
representational capacity, you will likely need to file an appearance. In this
instance, it is probably a good idea to state on the record the more limited
nature of your work, which makes the court aware of your limited role and can
avoid potential problems later. If you do this, it is usually a good idea to go
over this with your client in advance. And as always, filing an appearance has
its potential downside; once in a case on the record, counsel may need the
court’s permission to withdraw.

8. What
About Losing Control of the Case?

By giving clients more direct control of their
settlement, mediation appears to give lawyers less control. This worries some
attorneys who are used to the litigation model that puts them in the center of
the case, knowing everything that occurs. However, what seems like less daily
control is often more control over what really matters for both you and your
client. In mediation you rarely find yourself frustrated by endless motions,
nor in most cases do you end up submitting to a binding decision-maker who can
never know the case as well as you and your client do. Rather, the consulting
attorney has the freedom, with the client, to focus exclusively on the
settlement – and one that is satisfactory on all points.

It is true that you will have to develop a means of being
‘kept in the loop’ in mediation cases, since it is the client — and not
counsel — who is the hub of information and decision-making. Some lawyers I
know of make sure to stay appraised of the mediation schedule, progress and
agenda, and to chat with their mediation clients between each meeting, if just
for a minute or two. Others leave it to the client to call them as needed. The
key is to become flexible and do what works best for your client; your need to
know everything may conflict with the client’s need for control and
self-determination. However, you should be clear with your client about how
much regular information you will need so that you can give relevant and
effective advice when called upon.

9. What
If I Disagree with the Settlement
?

Whether in mediation or not, lawyers and clients often
disagree about whether a settlement is fair under the circumstances. Many
attorneys worry that when acting as consulting counsel they might disagree with
the client’s chosen course of action, and might have less influence over the
client, and the outcome, than in the litigation model. So they avoid taking
consulting counsel engagements. This concern should not by itself be a reason
to avoid expanding your practice to include offering consulting counsel
services. There are many ways to handle the situation in which you and your
mediation client disagree about the settlement.

You can
always send the client a letter stating that you approve of the agreement as to
form only. This means that you are comfortable with the actual written form of
the agreement, but reserve judgment substance of the specific settlement. In
more egregious cases some attorneys send clients a letter of non-concurrence,
which specifically lays out that consulting counsel’s concerns are so grave
that he or she can not concur with the result. In one memorable consulting
counsel engagement I struck a middle ground. First I discussed my substantial
concerns over the settlement terms with my client. I then sent her a four-page
letter reprising our conversation, which I asked her to sign. By doing so, I
was relieved of my own liability concerns, and could better help the client
achieve her goals on her terms, though this differed considerably from my
advice.

One final
course of action is, where permitted and appropriate, to file an appearance
with the court and state on the record your concerns, as well as your
understanding of the scope of the representation. Some attorneys will question
their own client on the record as to these points, to be certain that counsel,
the client and the court share the same understanding.

Satisfied Clients and a Way to Expand Your Client Base

Family
lawyers who work as consulting counsel in private mediation tell me how
satisfying they find the work. Many report their relief from having to endure
the endless grind and hassle of adversarial, contentious negotiations, not to
mention the stress of courtroom battles. Others report their great
gratification in seeing cases come to closure quickly, and for the most part
peacefully, so they can move on to other responsibilities.

In my
experience mediation clients are usually very satisfied with the process
overall, including the work of consulting counsel. They like having reached
settlement with increased control over the outcome and process, as well as with
the civility and dignity that a more consensual approach fosters. So mediation
clients pay their bills. And since they are usually actually with you for much
of the billed time, clients will better understand the nature of your work,
resulting in fewer disagreements over bills and fewer fees to write off.

You will
likely make less money per case as consulting counsel than in a full-service
model. But remember that it is not necessary for each case to be a large
revenue producer in order to have a successful practice and make a good living.
Satisfied clients spread the word and in the long run will form the foundation
of a lucrative practice.

Finally,
there is the opportunity to develop a long-term client. Many mediators such as
I do not accept subsequent legal work of any nature – including estate work,
real estate matters or business engagements — from mediation clients.[8]
This is because we believe that doing so might create the perception that the
mediator favored a client during the mediation in order to secure a lucrative subsequent
engagement. Even if untrue, this appearance of bias is enough for many of us to
refuse to take on any succeeding legal work from any mediation client. This
leaves the opportunity for consulting counsel to receive these engagements,
from clients who are usually satisfied with the representation in the
mediation.



SAMPLE
CONSULTING COUNSEL ENGAGEMENT LETTER

9 May, 2001

Jane Smith

12 Main Street

Anytown CT 06999

Dear Jane:

You have asked me
to provide you with individual advice in connection with your mediation
conducted by John Jones, Esq. In contracting with me to provide this service,
please understand the nature of my role.

My advice and
answers to your questions will be based solely upon the information I receive
from you. So, in our conversations I will advise you as to the legal
significance of any proposed settlement you convey to me solely in conjunction
with the facts as you convey them to me. Additionally, in reviewing any
unsigned draft of your proposed agreement, I will answer your questions and
advise you as to the legal significance of each provision solely as it appears
from the written text of the agreement in conjunction with the facts as you
convey them to me.

Often, it is
customary for a lawyer who represents you, and only you, to negotiate the
agreement for you, to investigate all facts, and even to compel production of
facts related to your spouse’s circumstances under oath through discovery and
court proceedings. However, by signing below, you are asking me to do without
these additional steps in order to save time, professional fees and court
costs, as well as to preserve a conciliatory family climate. This is acceptable
to me as long as you understand that any advice I formulate without full factual
information about your case could be entirely different from my advice if I
were fully informed of all relevant facts.

I shall tell you
what is legally advisable, but will ultimately be governed in this matter by
your expressed desire that, in choosing mediation, you have consciously chosen
to sacrifice or compromise the fullest advancement of your individual interests
in favor of preserving a conciliatory family climate, pursuing other interests,
and saving time, professional fees and court costs. My understanding is that
for these reasons, you have not elected to seek the adversary lawyer
representation that would require full investigation of all facts and the
fullest advancement of your individual interests, and at all cost.

You have told me
that it is your sincere hope that you will be able to conclude a settlement
without the necessity of litigation, court appearances and motion practice, or
substantial attorney intervention. I share that hope, and will work diligently
with you to help to create this outcome. However, should your case, in my
estimation, require a litigated approach, court appearances, motion practice or
substantial attorney intervention, you authorize me to withdraw from your
relationship as and when I see fit. Finally, you agree not to require me to
file any appearance with any court or judicial body unless I choose to do so;
and if I should file such an appearance, you authorize me to withdraw such
appearance as I choose.

Please be aware that under Connecticut law, there
are ‘Automatic Orders,’ which govern finances, children and living arrangements
once most family cases are filed in court. In general, these Automatic Orders
apply to the plaintiff upon his or her signing of a court document known as the
Complaint, and to the defendant upon his or her signing of a court document
known as the Cross-Complaint. I have attached to this Agreement a copy of these
Automatic Orders, two pages long, on form JD-FM-158. I strongly advise that you
read the Automatic Orders carefully and discuss them with me or in your
mediation to be sure that you understand them. Violations of these Automatic
Orders could result in a finding of contempt of court, which could result in
imprisonment and financial penalties.

To begin our work,
please provide a $[ ] deposit, for
which I will provide a receipt, to be applied to your final bill. By signing
below, you agree to compensate me for my services performed both in and out of
meetings at the rate of $[ ] per hour,
and for the full amount of time which is allotted in advance for each meeting.
Payment for each meeting is due and payable in full at the earlier of our next
meeting or when I next render an invoice. Should there be work to be conducted
by me in between meetings, which in my estimation will be substantial, I may
request an additional deposit before beginning such work. Should I raise the
hourly rate charted to new clients, you agree that I can raise the rate charged
you in accordance with such increase, and will of course give you advance
warning of any increases.

Of course you may
terminate our relationship at any time. If you do so, I will fully cooperate
with your in transferring your files to you or another law firm you designate
to me in writing; provided you have paid all outstanding invoices in full.
Otherwise, I reserve the right to impost a lien on your files until we work out
a mutually satisfactory payment arrangement.

In order to be
fair to all my clients, except in legitimate emergencies or weather-related
circumstances, I must charge you for scheduled meeting for which you give me
less than [ ] business days’
notice of cancellation.

In addition to
compensation for consulting services, I will bill you for time spent outside
our actual meetings to conduct research, develop information, and the like on
your behalf, as well as on the telephone, at the rate per hour stated above,
and payment for such services will be due in full at the next meeting or when I
next render an invoice.

If you have any
questions concerning this agreement, please ask them of me before you sign it.
If you have none and if the above coincides with your understanding of our
relationship and you agree that I shall not undertake a full adversarial
inquiry into your proposed separation agreement, please sign this letter in the
space provided below.

Sincerely,

Michael
Becker

Agreed and Accepted:

____________________________

Jane Smith

Dated:



[1] Michael Becker is an
attorney, accountant and law school professor with a full-time mediation
practice in Westport, Connecticut. He is the author of numerous articles on
mediation directed at both practitioners and the public. Michael is a founding
Director and past-President of the Connecticut Council for Divorce Mediation,
and is an Academy of Family Mediators Practitioner Member. He is Adjunct
Professor of Law at University of Connecticut School of Law, where he
co-teaches a clinical course in mediation, and at Quinnipiac University School
of Law, where he teaches lawyer negotiation. Michael can be reached at One
Kings Highway North, Westport, Connecticut 06880; e-mail mediate@snet.net.

[2] Whether to caucus or not, and
if so, when, is a disputed norm in mediation circles. There is no right answer,
and some mediators caucus more often than others. In the extreme, there are
some mediators who never caucus, and others who use caucusing as their primary
method of practice, conducting what is sometimes referred to as “shuttle
diplomacy.” There has been much written on the usefulness and ethical issues
surrounding caucuses, which is beyond the scope of this article. For purposes
of this article, I will assume that most meetings are held in joint session
with occasional caucuses, which is the norm in my area.

[3] In most areas of which I am aware when the mediator is an attorney, he
or she is permitted to draft the settlement agreement. Please note that this is
also a disputed norm.

[4] These actions are broadly
defined by some as giving “evaluation.”
Different jurisdictions permit attorney and non-attorney mediators to
engage in evaluation to a greater or lesser degree. In most jurisdictions there
is no clear rule, while others are currently considering the question. This
having been said, it is thought by many to be more important for consulting
counsel to provide evaluation when the mediator is not an attorney and may be
less familiar with these technical points.

[5] See below under “Educate the
Client” for a discussion of discussing the suitability of mediation in certain
situations.

[6] While I would like to take
credit for inventing this approach, I cannot. This technique is derived from
the interest-based approach so well outlined in the now-classic book, Getting
to Yes
(Fisher, R. and Ury, W., 1981).

[7] Other mediator styles worth
investigating, but which are beyond the scope of this article, are whether then
mediator is ‘”transformative” or “problem-solving” in overall approach, and
whether s/he defines problems “broadly” or “narrowly.”

[8] In some states mediators may
be prohibited from doing so anyway.
Check your local rules.

                        author

Michael Becker, Esq.

Micheal Becker is an attorney, accountant and law school professor with a full-time mediation practice in Westport, Connecticut. He is the author of numerous articles on mediation directed at both practitioners and the public. Michael is a founding Director and past-President of the Connecticut Council for Divorce Mediation, and is… MORE >

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