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How can I help my lawyer to work
with my mediator?
Your attorney's involvement in your mediation and how you can/should influence it is a
highly complex issue. This is especially true in New York and New Jersey, where many
matrimonial attorneys are ignorant of -- or even prejudiced against -- mediation. If you
wish to make a reasonable attempt to settle your case through mediation, you should retain
an attorney who is sophisticated and experienced concerning mediation and has the same
level of commitment to the process as you do. Your mediator may be able to assist you in
locating such an attorney.
Divorce mediation encourages the parties to exercise
maximum control over both the process and ultimate issues. It's generally conducted
without the attorneys present, and there's little or no direct contact between attorneys
and the mediator. Attorneys are rarely present during mediation sessions except to deal
with problems such as extreme power imbalances or technical complexity (e.g., assets that
are difficult to value). I encourage clients to consult with attorneys between mediation
sessions concerning such issues as: their alternatives (i.e., likely trial outcomes); what
discovery is necessary; and the client's goals and mediation strategy. Although you should
seek your attorney's advice, you should always be the ultimate decision maker.
An important way to help your attorney is to make it
clear that you understand the uncertainties of litigation. Family law trials outcomes are
not very predictable in most jurisdictions because of the great latitude in resolving such
issues. This principle, known as "judicial discretion," often leaves a realistic
attorney able to give a client only broad parameters on hypothetical outcomes to help the
client make informed settlement decisions.
The best way to help your attorney serve your needs --
whether in mediation or the adversarial process -- is to demand sober, realistic legal
advice. If you decide that the "other side" is recalcitrant and the matter can't
reasonably be settled, let your attorney aim for the stars at trial, even if getting all
you're after is highly unlikely. But until then, in mediation and settlement conferences,
make your decisions concerning what constitutes a reasonable settlement based on a
realistic appraisal of your alternatives. |
