Spring 2018: Representing a Client in a Divorce Mediation: What Do You Need to Know?

By Justin Kelsey, Esq.

Representing a client in a mediation is not the same as representing them in court.  The rules are different, the timeline is different, and the client’s expectations are likely different.  However, at its core, representing a client in a mediation is still about providing legal advice, legal education, legal counseling, and effective advocacy to help clients accomplish their goals.  

How is Mediation Representation THE SAME AS Representation in Court:

Advice on the Choice of Forum:  

It is the first role of an attorney to advise their clients on the best process for addressing their dispute.  Before deciding on a strategy, you first have to know where you’ll be pursing resolution.  While many people assume that if they’re talking to a lawyer then they must be on their way to court, lawyers can be the gatekeepers to many different dispute resolution options.   Mediation, collaborative law, attorney negotiation, arbitration, and conciliation are all methods of reaching resolution without (or with minimal) court intervention.  

Whether a client comes in the door seeking a particular process, representing a client’s best interests requires that the lawyer explore the pros and cons of all the dispute resolution options with a client so that they can make an informed choice about the best process for their dispute.  In addition, notifying clients of these options is a requirement of Rule 5:

Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) which states in part: "...Attorneys shall provide their clients with this information about court-connected dispute resolution services; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution; and certify their compliance with this requirement on the civil cover sheet or its equivalent."

Provide Legal Advice: 

A mediator can provide legal information but not legal advice.  That's because legal advice is particular to the client’s individual situation and the mediator as a neutral shouldn't be providing advice to either individual.  The attorney’s role in a mediation, just as it is in court representation, is to advise the client of their legal rights and obligations.  This advice should include the likely range of outcomes in court, and the areas in which clients have the right to deviate from the court’s limitations. 

Act as a Private Sounding Board: 

Sometimes people are afraid to raise certain issues in mediation because they're not sure if it's relevant or how the other person will react.  A lawyer can help the client decide what issues they should raise and the best way to raise them.  While the bar for relevancy may be different (and broader) than the “relevant” information for a court proceeding, the role of the attorney is still similar in that the attorney can help a client evaluate what they should bring up and what they shouldn’t.  This can help the mediation proceed much more efficiently.  

Provide Education about the Law:  

Mediation is a negotiation, and if the client attends without a lawyer then they are negotiating for themselves.  One of the best ways to do well in a negotiation is to be prepared.  While the mediator can provide legal information, the client may not even know the right questions to ask unless they have also consulted a lawyer.  Similar to how a lawyer would provide legal education to a client to prepare them for what they should ask for in court, the lawyer performs the same role in a mediation.  Even if the lawyer plans to attend the meeting, having  an informed client in advance of the meeting will ensure a smoother discussion.

How is Mediation Representation DIFFERENT THAN Representation in Court:

Negotiation Coaching:  

Even the best negotiators can have difficulty negotiating on their own behalf.  It's not only difficult to be objective about one’s own situation, but having a relationship with the other person can make it difficult to negotiate with them effectively.  A lawyer can help the client prepare for those challenges and provide advice on the best way to approach issues.  This is often different than representation in court where the lawyer primarily speaks on behalf of the client.  In cases where there is an ongoing relationship between the parties (such as co-parents in a divorce) this negotiation coaching can provide valuable long-term communication skills to the clients, possibly helping them avoid conflict in the future.

Another Perspective:  

Every professional has different levels of experience and different expertise.  A mediator should be considered another resource on the case, and not an adversary.  Each professional attached to the case will bring with him or her different experiences and may think of an option or solution that the client or other professionals missed.  Be open to option generation from all sources to find creative solutions that fit each conflict’s specific needs.

Potential Problems Lawyer Can Create while Participating in Mediation and How to Avoid Them:

One Step Forward, Two Steps Back: 

Sometimes the clients reach agreements in a mediation meeting that the lawyer then advises them are outside the norms of settlement, or the likely range of outcomes in court.   This advice, especially when received after discussions have occurred, can destroy progress made in mediation, and potentially destroy any good-will built through that process.  This risk can be minimized by working with a client from the beginning of their case and providing legal information and advice before they reach agreements in mediation.  A client may resist this approach thinking that they should try to mediate their dispute first, but both the mediator and attorney should encourage the client to only make decisions once they feel fully informed.  Counseling your client in advance and throughout, can limit the unraveling of a well mediated agreement.   

Increased Cost: 

Working with a lawyer in addition to a mediator increases the cost of the process.  Both mediators and attorneys have been known to suggest that the other isn’t necessary, and possibly a waste of money; some lawyers will insist that they know how to settle cases and don’t need a mediator, and some mediators will insist that they can provide legal information and that’s enough to inform clients.  Both of these positions lose sight of the strengths that each profession brings to a dispute resolution.  Lawyers can’t problem solve from the same perspective that a neutral mediator can, and mediators cannot provide individualized legal advice.  These added values are not something everyone can afford, but often the use of both professional roles effectively saves clients in the long run, by reducing the likelihood of a bad agreement or one that does not truly satisfy the parties.  The cost can be minimized by using the mediator and lawyer efficiently.  Ultimately being prepared for mediation meetings may reduce how many mediator meetings are needed.   Also, the result of being uninformed or misinformed can often be more costly than what a client will spend for time tested advice.

Polarizing Advocacy: 

While legal advice is invaluable for a client going through a complicated dispute, like a divorce, there is a difference between providing advice, and insisting that a client must take that advice.  Some lawyers have strong opinions about what is best for their client, and those opinions lead them to criticize the mediation process, especially if the client is reaching agreements that might be less than what the lawyer believes they could get in court.  Crossing this line is the hardest thing for lawyers to avoid when they are familiar with  guiding a client through a court solution of a case.  

However, when a client has chosen mediation they have set as a goal some level of self-determination.  The lawyer must recognize and respect this choice.  While the lawyer is still the client’s advocate, the client controls the ultimate settlement decision.  Keeping this in mind, and not personalizing the client’s choices will ensure that you respect the client’s right to make final decisions in their case, and ultimately in their life.  

Conclusion:

It never hurts to have more tools in your reserve.  Attorneys may benefit from taking a mediation training and a collaborative law training, even if they’re unsure whether they might practice in those areas.  The trainings create better negotiators to represent clients in the arena of their choice.  A mediation-friendly attorney can help a client settle their case much more efficiently and result in a settlement that is well informed.  Conversely, an attorney who doesn’t understand the mediation process and their role in that process can sabotage a client’s opportunity for peaceful resolution.   Remember that the client should be making informed choices throughout their dispute, including the process for resolution, and the eventual resolution itself.  Mediation is just another forum where clients have the opportunity to reach resolution, and a well-rounded attorney can help their client in any forum to reach their goals.   


JUSTIN L. KELSEY is a Collaborative Divorce Attorney and Mediator at Skylark Law & Mediation, PC in Southborough, Massachusetts.  He is a graduate of Boston University School of Law and Worcester Polytechnic Institute.  Justin is the current President of the Massachusetts Collaborative Law Council and is also on the board of the Massachusetts Council of Family Mediation.   Justin has been recognized by the Massachusetts Council on Family Mediation as a Certified Mediator. MCFM was the first organization to certify family mediators in Massachusetts and certification is reserved for members of the Massachusetts Council on Family Mediation with significant mediation experience, advanced training, and education.  He has spoken at MCLE, MCLC, MCFM, MBA, BBA, CDSC, APFM, AFCC and IACP on topics ranging from marketing & social media to jurisdiction, child support, alimony, collaborative law, and mediation.  Learn more about Mediation and Collaborative Law at skylarklaw.com.