Some attorneys consulted by clients before and during mediation tend to give the clients only generic “legal information” about “legal rights.” They tell their clients what the statutory and case law says and how a judge generally tends to rule on typical issues. Even after these lawyers learn enough about the client’s facts, needs and interests, they still tend to give advice oriented toward how a judge would rule rather than engaging in creative problem-solving and suggesting options for settlement. Options that might better meet the client’s particular needs and interests in a way acceptable to the client’s spouse. Options that might quickly open up a discussion leading to a peaceful settlement and an end to legal fees and stress.
Thus the creative suggestions and options that a client might need to participate most effectively in mediation may not be given by the lawyer. Fortunately, part of the mediator’s job is helping the parties engage in problem-solving to come up with creative options that best meet the needs and interests of both parties. Also, while mediators cannot give legal advice, they can give legal information.
Additionally, the client might also need and want the lawyer to help the client prepare for negotiations. This preparation involves not just what to ask for in mediation but when and how to ask for it.
There are two primary reasons why some lawyers tend not to help mediation clients as much as they could help them:
(1) Until an attorney becomes attorney of record in the client’s case, the attorney is not ethically required to answer the questions the client doesn’t know to ask, but should ask. In other words, there is lots of advice that an experienced lawyer can give a client that the client probably needs to know, but may not get, because the client doesn’t know what to ask for.
(2) Lawyer ethics state that “in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the same matter,…” Divorcing parties are free to communicate directly with each other about anything. If they have minor children, they should continue to communicate regularly about visitation schedules, school performance and extracurricular activities, etc. It comes as no surprise that they often discuss divorce issues besides visitation. It is the lawyers that have the problem with divorcing clients discussing divorce issues between themselves. Lawyer fear being accused of bypassing the spouse’s lawyer and of coaching their clients to negotiate sensitive “legal” issues directly with the spouse. It is unethical for your lawyer to use you as your lawyer’s agent or to use you as a conduit in delivering messages, advice or information to your spouse. Similarly, it is unethical for you to be your lawyer’s tool for eliciting information from your spouse concerning any aspect of the divorce, including issues regarding child custody and visitation.
So what all this means is that rather than run the risk of being accused of circumventing the other lawyer, if you and your spouse don’t want to spend the money to have your lawyers present during mediation sessions, then your lawyer may not be comfortable proactively helping you prepare for or participate in negotiations during mediation, any more than your lawyer would be comfortable proactively advising you to discuss the case directly with your spouse if suit had been filed.
If both parties want their lawyers to be more effective and creative problem-solvers and better team players during mediation, here’s one way to accomplish that goal: both parties and their attorneys can sign an agreement that (1) the lawyers will provide legal advice and negotiation coaching during mediation; (2) the advice and coaching (a) is only given to better prepare the clients to participate effectively in mediation, (b) is neither given to script nor to mastermind the client’s communication directly with the other client and (c) is not intended to by-pass the mediation process; and (3) the lawyers waive the prohibitions of legal ethics Rules 4.2 and 8.4 until the conclusion of the mediation process.
Even if the above terms aren’t agreed to, a mediation client should consider having the attorney include in the retainer agreement exactly what services the attorney will provide, including a statement of the attorney’s response time to a client’s request to meet, to talk on the phone or to respond to phone or email inquiries. The attorney should also agree to be available and willing to communicate with the mediator. Before consulting with your attorney be sure to read the “Client’s Bill of Rights” found on Mr. Massey’s business card.
The foregoing provides educational information and does not provide legal advice. It was not prepared for you either generally or in connection with any specific issue or case. The mediator does not give legal advice. You are responsible for obtaining legal advice from your own lawyer.
The foregoing provides educational information and does not provide legal advice. It was not prepared for you either generally or in connection with any specific issue or case. The mediator does not give legal advice. You are responsible for obtaining legal advice from your own lawyer.