Practical Domestic Mediation

Melanie Douglas*

With the current financial crisis our country is experiencing, attorneys must be willing to adapt to the needs of those involved in the legal system.  One area in which we have not placed enough emphasis is offering non-adversarial options for domestic cases.  For quite some time, the processes offered to parties in family law cases have been limited to 1) the traditional adversarial route through the court system, 2) a mediation and/or arbitration approach, or 3) the collaborative law setting.  Each of these avenues can still be extremely expensive and frustrating for the average client.

As many professions are realizing that they have literally priced themselves out of the market, domestic practitioners must look for other options in aiding clients through the legal maze.  The average person going through a divorce or parenting case cannot afford a retainer of thousands of dollars, yet is in need of guidance so that costly mistakes can be avoided.  Often, spouses or unmarried parents are in agreement on how to resolve their differences and should have a way to obtain properly prepared paperwork to protect the interests of all concerned.  Resorting to a paralegal service to provide standard forms and check boxes is not an adequate solution for most parties.  On the other hand, a legal bill for thousands of dollars is not a viable option either. 

The issues in domestic cases are specifically amenable to a conciliatory process because of the emotional damage that can occur in the traditional adversarial process to both the parties and children.  Research indicates that the adversarial family law process has less impact when conciliatory dispute resolution is successful in resolving a case.[1]

Offering a type of “practical mediation,” where a seasoned attorney assists the parties in reaching an agreement and prepares final paperwork is my suggested remedy.  The parties can take advantage of legal expertise and obtain paperwork for the court to adopt as “Final Orders.”   If the attorney is very clear about their role as a neutral mediator and explains that the attorney does not represent the interests of either party, this is a solution that can be useful and save the participants thousands in legal costs.

Practitioners may argue that this method is already taking place with the mediation/arbitration process, but I respectfully disagree.  In the conventional model, those who typically use the mediation/arbitration process are represented by attorneys who have recommended this avenue.  Instead of going to a hearing with a judicial officer, paid by the State of Colorado, the parties have now added a third-party neutral cost.  Along with paying their attorneys to attend and participate in mediation/arbitration, the parties are also paying several hundred dollars extra for an experienced mediator or the decision-maker. 

The solution I am suggesting looks like this:  pro se parties set an appointment with the “practical mediator,” with the understanding that if all issues are resolved the parties will leave the mediator’s office with a document to file with the court as their “final orders.”  The parties can settle the entire case within a matter of hours, with one payment to the mediator who also prepares their final papers.  There is a huge need among pro se parties, especially those in the middle to lower income ranges, for this type of service.   

Mediation is already used, and often required, in most domestic cases.  However, the memoranda of understanding, if prepared for the parties, are often not adequate to properly protect the parties’ interests as “final orders.”  Mediated agreements must be reduced to writing and signed by the parties to ensure enforceability.[2]  Often, an agreement is reached during mediation, but the participants have a case of “buyer’s remorse” before they go to court or sign a written version of the agreement.  Practical mediation, with preparation of thorough pleadings, subverts this problem. 

Practitioners may see a problem with this viable solution in the Colorado Rules of Professional Conduct.  The rules clearly allow a lawyer to act as a “third-party neutral.”[3]  However, several of the rules indicate potential hazards when a lawyer-mediator shares knowledge, makes suggestions, and prepares the documents with the appropriate legal jargon to adequately reflect the agreement.[4] The problems arise when the lawyer-mediator walks the fine line between assisting the parties with their issues and offering any legal expertise.[5] 

Several situations may arise where the parties are agreeing to something that the lawyer knows directly contradicts the law.  For example, a lower-earning spouse may be willing to waive an equalization of retirement benefits, based on the assertion that this asset belong to the person who “earned” the income.  Both parties should be adequately informed that any funds earned during the marriage are considered “marital.”  Inserting the legal information under these circumstances can be very difficult.  Giving legal advice can trigger a change in the role of the lawyer-mediator, unless it can be done in a manner that merely assists the parties and does not create a conflict of interest or perception of bias.   

The key is for the lawyer-mediator to have a well written “Agreement to Mediate” that clarifies the role of the mediator.  The language must include statements that although the mediator is a lawyer, the mediator does not represent either/any party as their legal counsel and will not give the parties legal advice.  It is a good idea to verbally clarify the role of the lawyer-mediator, even after the parties have read and signed the Agreement to Mediate.[6]  

It is also imperative that the lawyer-mediator maintain a neutral presence during the mediation.  If either party perceives the mediator as biased, the possibility of settlement decreases dramatically.[7]  The perception of favor toward one party is also the perfect recipe for a complaint against the attorney.  Acting as a third-party neutral does not change the applicability of the Rules of Professional Conduct.[8]  The mediator role, however, does not create an attorney-client relationship, as described in Rule of Professional Conduct 1.2 and should not be confused with offering limited or unbundled legal services.  It is also a good practice for the mediator to recommend to pro se parties that they each should seek separate legal counsel, if they so desire.

The lawyer-mediator must ensure that both parties have provided full disclosure of financial information as required under Rule 16.2.[9]  The mediation process, when dealing with the economic issues of the parties, cannot be meaningful and should not take place without full financial disclosure.   A third-party neutral must also have the requisite legal knowledge to assist the parties in the domestic issues that should be addressed during the mediation process.[10]

Once the attorney has made the role as mediator clear and is confident that full disclosure has taken place, the real work can begin.  The parties will usually have several issues in mind that they want to resolve.  However, the lawyer-mediator should also be aware of specific details the parties have not considered.  Examples include:  1) a life insurance provision to protect the duty of support; 2) transportation requirements when exchanging the children for parenting time; or 3) a time limit for when a mortgage must be re-financed.  These are merely samples of topics that may need to be resolved in a typical case that the average party may not think to discuss during mediation.  Again, the lawyer-mediator walks a fine line between merely raising an issue for discussion and giving legal advice on what topics should be included in any agreement.  It is important for the lawyer to utilize their knowledge, yet not appear to be raising issues that create a perception of bias or conflict of interest.     

At the conclusion of the mediation, if the parties have reached any agreements, the resolved issues should be reduced to writing.  To protect the integrity of the process and the liability of the lawyer-mediator, any written document should include certain language.  The lawyer needs to indicate clearly in the document that the agreement was reached during mediation with the lawyer.  If the parties are pro se, the mediator should also include a statement that the lawyer was acting only as a mediator and that the parties clearly understood the mediator’s role.  As in the Agreement to Mediate, the parties’ final document should include a disclaimer that the lawyer was acting in the capacity of a third-party neutral and did not provide legal advice or represent either party.

Using the precautions stated herein, a family law practitioner can offer mediation services to a larger demographic of family law parties.  Due to the continued increase in domestic case filings and the ongoing economic situation, we need to find new ways for the average person to have access to our legal expertise.  As a profession, it is important for the family law bar to adjust our business practices to accommodate the needs of our community members.  We must provide alternatives to the traditional and expensive litigation process for the benefit of family relationships.  As stated by Charles Hamilton Houston, “A lawyer’s either a social engineer or a parasite on society.”[11]  As domestic legal advisors, we have a unique opportunity to be a social engineer in the practical mediation role.

 


* Melanie Douglas, J.D. St. Mary’s University of School of Law, is a former Deputy District Attorney and Magistrate. Currently in private practice in Colorado Springs, Ms. Douglas specializes in domestic relations proceedings as an attorney, mediator, and arbiter.

[1] See Robert E. Emery et al., Divorce Mediation: Research and Reflections, 43 Fam. Ct. Rev. 22 (2005)

[2] See Colo. Rev. Stat. § 13-22-308 (2010); GLN Compliance Grp., Inc. v. Aviation Manual Solutions, LLC, 203 P.3d 595 (Colo. App. 2008); Nat’l Union Fire Ins. Co. v. Price, 78 P.3d 1138 (Colo. App. 2003).

[3] Colo. Rules Prof’l Conduct pmbl. [3] (“In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter.”); Colo. Rules Prof’l Conduct R.2.4.

[4] See Colo. Rules Prof’l Conduct, R.1.7; see also Model Rules of Prof’l Conduct R.1.2.

[5] Colo. Rules Prof’l Conduct  R.2.4 cmt. 2 specifies that lawyers acting as third party neutrals may be required to follow additional rules of ethics including the Model Standards of Conduct for Mediators. Colo. Rules Prof’l Conduct  R. 2.4 cmt. 3 provides that a lawyer shall provide unrepresented parties with detailed information regarding the important differences between the lawyer’s role as a third-party neutral and the lawyer as a client representative.

[6] Model Rules of Prof’l Conduct R.2.4 cmt. 3 & R.5.7.

[7] See Model Standards of Conduct for Mediators § II (2005); Loretta W. Moore, Lawyer Mediators: Meeting the Ethical Challenges, 30 Fam. L. Q. 679, 689 (1996).

[8] See  Model Rules of Prof’l Conduct R.2.4 cmt. 4.

[9] Colo. R. Civ. P. 16.2.

[10] Colo. Rules Prof’l Conduct  R.1.1.

[11] Douglas O. Linder, Before Brown: Charles H. Houston and the Gaines case, Famous Trials (Mar. 9, 2011), available at http://law2.umkc.edu/faculty/projects/ftrials/trialheroes/charleshoustonessayF.html.