Mediating with Attorneys in the Room, A Webinar Sponsored by Familykind
As a mediator/attorney who offers private mediation services and consultant mediation services through Familykind (www.familykind.org), an organization that provides services to families experiencing separation and divorce, I had the opportunity this month with Andrea Hirshman, attorney and mediator, to present our perspectives on how to mediate with our client’s attorneys in the room.
The court system in New York City has embraced divorce mediation and recently established presumptive mediation panels in Brooklyn and Manhattan where both Andrea and I serve on the court’s rosters. In this setting, mediation provides the opportunity for clients to be heard with respect to their interests through the skills of the mediator and provide a confidential forum to brainstorm options that can lead to a meaningful and durable resolution. Attorneys are informed at a pre-mediation conference call with the mediator the role of the mediator and that an agreement to mediate will need to be signed by the attorneys and their clients. The mediator can be selected through the roster or the parties are free to select their own mediator. Attorneys need to understand that mediations are not about arguing or about their client’s legal rights. Instead, they must allow the mediator to facilitate respectful discussions with the clients so that their individual needs and interests are verbalized, and their spouse hears and understands them.
It is important to note that the court’s managers of these programs have screened the clients to determine whether they are suitable for mediation through detailed domestic violence protocols and other metrics to determine whether the clients are a good fit. Participation in mediation is voluntary and the court will not be privy to the substance of the sessions.
Typically, mediators do not mediate with attorneys in the room. With the advent of the court programs, it is essential that the mediator establishes control of the process and the attorneys understand their role. I invite attorneys to send me pre-mediation statements which will give the attorney the opportunity to share their view of the case and obstacles they see as preventing resolution. Attorneys are asked to share any court orders with the mediator as well as their client’s statements of net worth. Attorneys are asked to exchange their client’s financial documents with the mediator and each other. Just as in a litigated matter, valuation and appraisals of marital assets may be necessary.
My mediations are currently conducted Zoom which provide for breakout rooms in the event attorneys want to have private conversations with their clients. Court programs encourage attorneys to participate in at least the first session in which the mediator provides 90 (ninety) minutes of his/her time at no cost to the client. In my experience, many attorneys elect to forego attendance at future mediations, and serve instead as consultant attorneys for their clients. Attorneys continue to serve an invaluable role for their clients by gathering financial documents, providing legal advice to their clients and either drafting or reviewing settlement agreements that are drafted by the mediator who is also an attorney. Attorneys also remain responsible to the court and must adhere to court schedules and orders and ultimately file and prepare once there is a resolution, the required contested divorce package of documents with the court.
With the advent of Covid-19, mediating with attorneys in the room can provide divorcing clients with another opportunity to resolve their disputes in a meaningful way without the need for a long drawn out process in court. Attorneys and mediators each serve useful roles with the client’s goals of limiting the time and expense in resolving their divorce.
By: Helene Bernstein, Attorney and Mediator www.hbernsteinlawandmediation.com