REPRESENTING CLIENTS EFFECTIVELY IN FAMILY LAW MEDIATION
What does a “mediation consulting attorney” do? As more and more clients seek the services of family lawyers to support and assist them in mediation, lawyers in turn have an opportunity to think critically about the kinds of services that support mediating parties most effectively. Mediation consulting attorneys certainly perform traditional attorney tasks such as drafting and reviewing settlement agreements, although they may perform these tasks differently in the mediation context. There are many other less traditional roles consulting attorneys can play which materially benefit clients and create lucrative practice expansion opportunities. This article explores the difference between traditional advocacy and effective mediation representation through three alternative lawyering roles—scholar, teacher, and negotiation coach.
1. Be a Scholar: Know and Use Mediation Research1
Mediation, especially in the family law context, has been widely studied. There is a tremendous amount of empirical information available about mediation, including without limitation who chooses to mediate; the mediation process; outcome and satisfaction; impact of timing of mediation; number of sessions; use of directive strategies; and the list goes on. Familiarity with mediation research, and strategic use of that research in advising clients, can help clients maximize chances of success in mediation.2
For example, research indicates that the factors most predictive of settlement are (1) the parties’ perception of the mediator’s ability to provide insights into their own feelings; and (2) the mediator’s ability to aid the parties in understanding the feelings of children and ex-spouses.3 If we as consulting attorneys are aware that insight into clients’ own feelings as well as those of their children and former spouse promotes settlement, why not put effort into helping our clients gain that insight?
Other research indicates that the “active ingredients” of mediation include (1) the call for parental cooperation over the long run; (2) the opportunity to address underlying emotional issues; (3) helping parents to establish a businesslike relationship; and (4) avoidance of divisive negotiations at a critical time for family relationships.4 Think of the many ways consulting attorneys could support mediation by working with clients on these issues.
A final example relates to the timing of mediation. Several empirical studies have found that mediating early is more likely to result in settlement than waiting to mediate later in the litigation process. This is inconsistent with the conventional wisdom that mediation should only take place once all discovery has been completed and the case is essentially ready for trial. Consulting attorneys can add value by encouraging early use of mediation while simultaneously identifying and helping fill information gaps early to ensure that clients have a sufficient basis for informed consent without missing the window of opportunity for settlement.
2. Be a Teacher: Educate Clients about Divorce Dynamics
Clients are not born, they are taught. Clienthood is not a genetic condition. Most people need attorneys to explain, clearly and patiently, the keys to success as a client in order to have their goals met and enjoy a positive lawyer-client relationship.
Clients who are educated about general divorce dynamics are likely to be more self-aware and have greater insight into the post-separation behavior of their spouses. Since (as research shows) mediation success depends on the ability to articulate one’s own needs and interests as well as the ability to acknowledge the other participants’ needs and interests, the more insight and empathy your client has, the more likely your client will contribute productively to the mediation as well as get his or her own needs met.
There are many ways to approach the subject of divorce dynamics. Conceptual frameworks can be extremely helpful. For example, you can point out the distinct divorce relationships involved (e.g. Maccoby and Mnookin’s four types of divorce—spousal divorce, parental divorce, economic divorce, and legal divorce).5 In the spousal divorce, sexual, psychological, and social intimacy is brought to an end. In the parental divorce, the parties’ respective parental roles are redefined to accommodate new arrangements for the children. The economic divorce involves transition away from an economic relationship based on a single household. The legal divorce is aimed at producing a written document governing what will happen economically and in terms of parenting post-dissolution. These different relationships are obviously intertwined, but can unfold at different speeds and with different levels of acrimony and chaos. Using these relationships as a framework for discussion, check in with your client as to the status of each as a way of assessing where the parties are in the process and what implications there may be for mediation timing, agendas, and likelihood of success.
Another useful framework for discussing divorce dynamics is the model of cycles of grief developed by the Swiss psychologist Elisabeth Kübler-Ross.6This model, which identifies a cycle of emotions including shock, denial, anger, bargaining, guilt, depression, and acceptance, can be used as a tool for mitigating feelings of loss. Because divorce represents many losses—the loss of a relationship and companionship, lost connections to extended family and community, loss of an identity, and loss of each spouse’s hopes and dreams for the relationship and for their long-term future, the cycles of grief model applies to the divorce experience.
Parties in the shock/denial stage may feel stunned or numb; they may try to avoid the very notion of the pending divorce by deflecting efforts to talk about what is happening, refusing to respond, procrastinating, or acting as though nothing has changed. Parties in the anger stage may vent, express frustration and fury at the separation, and focus on punishment or vengeance (“I want to hire the nastiest divorce attorney I can find and take my ex to the cleaners!”). Bargaining parties try to change the outcome of the relationship by fantasizing about “what ifs” that may be irrelevant to the other party or otherwise unrealistic (“If I show my ex I can change the way s/he always wanted, maybe s/he will come back.”). During the depression stage, the person takes on as his or her responsibility the failures in the relationship and surrenders to the sorrow of the divorce (“I am worthless. This is all my fault—no wonder my ex left. I will be alone forever. Who would possibly want to be with me?”). Finally, in the acceptance phase, the person develops an ability to focus on the future and move forward towards it (“This has been really hard, but I am ready to be done and move on. I want to do what needs to be done to get this whole thing finished.”).
Though the model identifies an overall pattern, a party’s transition through these phases does not occur in a perfectly linear way.7 To the contrary, parties can move back and forth between and among the stages for months or years before arriving at acceptance. To further complicate matters, chances are the two parties will be at different stages in the process during any given interaction or negotiation.
Educating clients about divorce dynamics is productive for a number of reasons. People going through divorce often feel isolated; normalizing their experience can be comforting. Clients are also often comforted and helped by the reminder that their feelings will change over time. Adopting the posture of a teacher and helping clients contextualize their own experiences builds trust and reassures clients that you have insight into their struggle. Gaining insight into their own emotional processing gives clients self-awareness which may help them differentiate and articulate their short-term needs from their long-term needs. It may also help clients recognize and empathize with the other spouse’s parallel struggles in a manner that facilitates bridging the gap between them.
3. Be a Coach: Prepare Clients for Negotiation
In traditional representation, family lawyers are the key players in the game. Not only do we strategize, but we are the leading players in negotiation and the sole players in court advocacy and drafting. In mediation, the key players are the clients. Lawyers can still carry proverbial clipboards and whistles around their necks, but the clients are on the field as well. Sometimes, lawyers assume the role of “player-coach” in partnership with the client.
The lawyer coach can teach the client essentials of negotiation theory and give supervised individual training to the client in preparation for the mediation session. Helping the client develop creative options and a plan for the negotiation may be one of the consulting lawyer’s most important roles. In her groundbreaking article “Toward Another View of Legal Negotiation,” Professor Carrie Menkel-Meadow makes a persuasive case that thorough and creative negotiation planning, not style of presentation, is most effective in achieving negotiation success. 8 The consulting attorney can help the client assess the strengths and weaknesses of various proposals and help the client develop not only an initial proposal but also backup proposals based on anticipated responses. The lawyer can coach the client on how to present a proposal in a way that maximizes the likelihood that it will be heard and received positively by the other party.
Before a negotiation, offer the client an opportunity to consult with you to develop a strategic plan and to role-play making and responding to offers. Spend enough time working with your client to unpack and explore the client’s own underlying needs and goals in order to help develop priorities and clear objectives for the negotiation. Brainstorm these needs and goals with the client and list them. Have the client rank and prioritize them and help the client think critically about the subjective value that the client places on each one. This process may require more than one session to give the client sufficient time for reflection. What additional information might the client need, if any, to prioritize his or her needs and goals in a thoughtful and informed way? Identifying information gaps and options for filling them in can save clients time and money and facilitate mediation. Clients will fare better in mediation when they have a clear sense of their own strategic endgame, as opposed to mediating in a purely reactive, ad hoc fashion.
As with divorce dynamics, conceptual frameworks are useful here. There are many conceptual models for negotiation that you can use to provide structure for your client preparation. Professor Russell Korobkin of UCLA School of Law sets forth one such model in his casebook Negotiation Theory and Strategy;9 and many other scholars have articulated such models.10
Consulting attorneys should explain to clients fundamental negotiation concepts such as BATNA (Best Alternative to a Negotiated Agreement)11 and work with clients to articulate their BATNA’s in advance of working mediation sessions. In the context of family law mediation, the most common BATNA is to litigate; assessment of the BATNA, therefore, will involve a discussion of the law as it applies to the disputed issues and an assessment of the relative strengths and weaknesses of the parties’ legal positions. Comparing a negotiated agreement to the BATNA and quantifying the differences between the two will help the client determine his or her initial reservation point (i.e. the tipping point at which the BATNA is better for the client than a negotiated agreement.) Reservation points can always be adjusted during negotiation to accommodate new information. Strategic planning of this kind can help clients avoid what Professor Korobkin calls the “cardinal sins” of negotiation, namely (a) agreeing to a deal which renders the client worse off than the BATNA; and (b) missing out on a deal which would have rendered the client better off than the BATNA.
There are other ways to add value as a negotiation coach. For example, talk to clients about ways in which they might try to promote their interests in the mediation. Many clients initially gravitate towards power-based techniques (e.g. coercion, intimidation, using status and resources to overpower opponents) which can sometimes be effective but can also engender emotional responses that lead to impasse, damage reputations and relationships, and make future dispute resolution even harder.
Help the client to analyze the personalities involved (including those of the mediator and the opposing party’s consulting attorney), communication dynamics, and psychological factors that may influence how the negotiations unfold. For example, one common psychological factor in family law mediation is reactive devaluation, a cognitive bias that acts to devalue proposals that originate from an antagonist. The other side might be more amenable to considering a proposal that appears to originate from the mediator, or is raised as a hypothetical, than one that comes directly from the spouse. Anticipating and strategizing about how to defuse reactive devaluation is a highly effective aspect of consulting attorney negotiation coaching.
Progressive law schools emphasize role-playing for teaching essential skills such as client counseling, negotiation, and trial practice. In effect, you can become the client’s clinical instructor by rehearsing a negotiation and then giving constructive feedback. You can do this type of rehearsal in the presence of an associate or paralegal to get a useful outside perspective. Have the client record the rehearsal on his or her Smartphone and review the recording together.
Lawyers are more than just scriveners or legal encyclopedias. Our access to relevant research on mediation and on emotional dynamics of divorce, our experience working with families in transition, and our expertise in negotiation theory and practice are commodities with tremendous value for mediation clients. By thinking outside the traditional attorney box and leveraging our specialized experience and expertise in creative ways, consulting attorneys can serve mediation clients more effectively while also expanding our practices.
1 See Mosten & Scully, Complete Guide to Mediation, app. B (Highlights in Divorce Mediation Research) at 209-16 (ABA Family Law Sec. 2d ed. 2015).
2 For the best compilation of research on mediation between two covers, see Constance Beck & Bruce Sales, Family Mediation: Facts and Myths (Am. Psychological Ass’n 2001). While this book needs updating, it is a solid foundation for our work.
3 Jessica Pearson & Nancy Thoennes, Divorce Mediation: Reflections on a Decade of Research, in Mediation Research 9-30 (Kenneth Kressel & Dean G. Pruitt eds., 1989).
4 R.E. Emery, D. Sbarra & T. Griver, Divorce Mediation: Research and Reflections, Fam. Ct. Rev., vol. 43, Issue 1, 22-37 (2005).
5 Eleanor E. Maccoby & Robert H. Mnookin, Dividing the Child: Social and Legal Dilemmas of Custody 19-57 (1992).
6 Elisabeth Kübler-Ross, On Death and Dying, 1969.
7 Elisabeth Kübler-Ross & David Kessler, On Grief and Grieving: Finding the Meaning of Grief Through the Five Stages of Loss (2007)
8 Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754, 818-21 (1984).
9 Negotiation Theory and Strategy (3d. ed. Wolters Kluwer Law & Bus. 2014).
10 See, e.g., Robert H. Mnookin, Beyond Winning: Negotiating to Create Value in Deals and Disputes (2000); R.J. Lewicki, B. Barry & D.M. Saunders, Essentials of Negotiation (4th ed. McGraw–Hill/Irwin (2007).
11 Roger Fisher & William, Getting to Yes: Negotiating Agreement Without Giving In (1983).