THE BLOG
01/04/2012 02:01 am ET Updated Mar 04, 2012

How Lawyers Can Sabotage Mediation

I recently had some experiences in mediation that I would like to share with you. I believe that mediation is the best way to resolve a divorce or any other dispute because it has the parties going through a process where they are actively involved. They make decisions that impact upon their lives with the aid of the mediator and their attorneys. It is a way to stay out of the court. It is cost effective, and works in most divorces.

The problem in some mediations is the attorneys. A good attorney believes in mediation and will encourage it as a tool to try for a settlement on an amicable basis. When done in a hands-on manner and properly handled, mediation should be a win-win procesdure.

A mediator I was working with recently told me that he saw a well known divorce attorney talking to a client in one of the corridors of the court house where I practice. This attorney was telling his client that mediation will not work. He told his client to only do what he told him. He also said that the client should not make any decisions unless it is agreed to by the attorney. This is a recipe for disaster and failure. If the client is encouraged to go into mediation with that closed mind attitude, then it is doomed to fail. Keep an open mind. Be willing to negotiate. Being willing to explore options and not always relying upon your attorney can lead to a successful mediation and settlement of your divorce. Remember, you live with the results; your attorney does not.

Two weeks ago I was in a mediation with a fairly complicated divorce case where both parties were far apart on their beliefs of what would be a fair settlement. I represented the husband and the wife was represented by an attorney who also believes in the mediation process. We had a very experienced mediator who uses a shuttle diplomacy approach. In this approach, each party will prepare a mediation summary in advance. The mediation summary is a history of the marriage, information regarding children, work, income, assets, liabilities, and what each party wants and the reasons for the request. This is reviewed by the mediator in advance. The mediator will then have the parties in separate conference rooms, with husband and his attorney in one conference room, and the wife and her attorney in a second conference room. The mediator then goes back and forth talking to the parties and their attorneys. At times, the mediator will talk to the respective attorneys alone. Everything discussed is confidential unless the mediator is allowed to disclose some information to the other party. In this case, because everyone was invested in the mediation process, after a few hours, a compromise was reached, and the case settled.

On the other hand, I was in a mediation a couple of weeks earlier in a fairly contentious divorce where my client wanted to settle, and his wife wanted to settle as well. The problem was her attorney, who did not want to settle. He did everything possible to make the mediation fail. He refused to negotiate, took outrageous positions, and told his client not to talk alone to the mediator and not to do anything unless he, the attorney, agreed. Of course, after a couple of mediations, this third mediation session failed as well. My client and his wife wanted to continue negotiation and mediating, but the attorney told his client to get up and leave, which they did. The case was coming to trial, and both the husband and wife had reached a point where they wanted to settle and save the many thousands of dollars in additional attorney fees that a trial would cost. After the mediation, I encouraged my client to talk to his wife. The two of them did. They reached a settlement on their own. I reduced it to writing, forwarded it, both parties signed it. This was then sent to the wife's attorney, and his response was to send a letter to me demanding a lien to guarantee his attorney fees. In this case, the wife had been demanding a bill from her attorney for several months, and when we put the settlement on the record, she stated this, he presented her a bill for the first time at the court house, the court allowed us to take some time, she reviewed the bill, they then reached a compromise, and that was resolved as well. This is a situation where attorneys can cause many problems, and often hinder not only the mediation process, but settling a divorce case as well. The attorney, in this case, was more concerned about his fees than doing what was right for his client.

I would like to close with final thoughts about mediation.

1. If handled properly, it is an excellent process.
2. Make sure that your attorney believes in it. Talk to your attorney early in the case and discuss it.
3. Remember that your attorney works for you, and not the other way around.
4. Be prepared to spend time negotiating, mediating, and where necessary, compromising. A good settlement is one where everyone compromises.
5. If your attorney tells you that mediation will not work, or is strongly opposed to it, then perhaps it's time for you to change attorneys.

If you have any thoughts on this idea, please share them with us.

By: HENRY S. GORNBEIN
Family Law Attorney & Legal Correspondent
DivorceSourceRadio
40900 Woodward Avenue, Ste. 111
Bloomfield Hills, MI 48304-5116
248/594-3444; Fax 248/594-3222
DivorceSourceRadio.com
hgornbein@familylawofmichigan.com
henry@divorceonline.com

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