Mediation
The practitioner should always advise the client of the option of alternative dispute resolution. An agreement mediated by clients with the assistance of their attorneys is likely to be a more comprehensive document than judgment received after a trail. Therefore, mediation is a powerful mechanism for the quick and efficient resolution of a divorce case. In many jurisdictions, mediation is mandatory with respect to custody and visitation. When mediation occurs, the lawyer continues to be involved but in a different role.
In child custody and related issues, the client needs to be cautioned as to the possible consequence of mediation. Mediation is usually viewed as a privileged session. However, a client airing his or her differences may alert the spouse to weaknesses in the client’s case, thereby providing the opponent an opportunity to strengthen his or her case.
The client also needs to understand the dynamics of mediation. The mediator is simply attempting to facilitate the decision-making process. Unfortunately, when one party is intractable as to his of her positions, the mediator may focus on the more flexible party to see if that party will move from his or her position. In these situations, one of the participants may sacrifice his or her positions for no apparent gain.
A client will be unable to effectively mediate financial issues if he or she is unaware of the nature and extent of the family assets, liabilities, income, and expenses. The client should be conversant with the disclosure form and be comfortable in relying on it during the mediation session. If questions concerning full disclosure, accuracy, or the like exist, mediation is premature. To the extent valuations are necessary, the practitioner should work with the client to select either a joint or independent appraiser to appraise businesses, real estate, defined contributions plans, etc. Without valuations, the client in mediation could be taking on significant risk and the practitioner could ultimately be blames.
Prior to mediation, the attorney should also discuss the disputed issues with the client and advise him or her as to how the law would be applied if the case were to be litigated. The mediator should not be expected to give the client legal advise as to, for example. the appropriateness of business deductions in child support calculations or the burden of proof on a removal case.
Last, the practitioner should continue to counsel the client throughout the mediation process. It is a good idea to request copies of draft agreements during the process in order to point out errors and omissions to be brought back to the mediator. Failure to do so may result in an incomplete or unsatisfactory agreement.
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