An Overview Of Divorce Mediation For Family Law Paralegals

The Paralegal’s Special Role In Assisting Divorce Lawyers In Family Law Conflict Resolution

We’re convinced: Paralegals know the score!

The role of paralegals is such that — more than any other participants in the litigation process — they “enjoy” a unique relationship to clients facing divorce and family law issues.

Being in the trenches, they hear the day-to-day vignettes of their clients’ family and personal struggles and closely observe and reflect on the dynamics at play in the divorcing or divorced or separated client and couple. Often, they have the greatest insight into what interests are really at stake, what positions are just defenses to their clients’ overtaxed emotions, and what approaches may help move the case to resolution.

At the same time, paralegals have unparalleled access to, and often, influence on, their supervising lawyer and his or her judgments about how sensibly to advance resolution of their clients’ cases.

All these grant paralegals special opportunities to position a mediation to be an efficient and successful process.

Why? Paralegals can:

• Assess, early-on, mediation’s suitability
• Influence the style and approach of mediation process to be used
• Direct the selection of an appropriate mediator for the case
• Coordinate mediation’s timing
• Timely prepare materials and aids promoting the mediation’s success

We’ll consider each of these special opportunities here, in discussing the whether, who, what and when of mediation in a divorce or family law case. Although this article is written from the perspective of full-time Colorado professional attorney-mediators (practicing in the Denver metro region), we believe our observations to be generally applicable to paralegals in other areas and states as well.

Important Mediation Questions For Paralegals

1. Whether To Mediate (Mediation’s Suitability For A Family Law Or Divorce Case)?

Of course, as Colorado professional mediators, we seldom see divorce or family law cases that could not materially benefit from timely mediation with a professional who provides artful mediation skills and expertise in the area of dispute. And, as a practical matter, many counties in the metropolitan Denver, Colorado, areas mandate mediation prior to granting court time for a contested hearing. In these cases, it’s clear mediation is in order, absent timely settlement by the parties or their lawyers.

Yet, even where this inquiry is moot because of the local procedural requirement of mediation, review of the following types of cases (likely to benefit from mediation) may be insightful to your preparation and assistance as a paralegal:

• Is there an emotional barrier to settlement? (party or parties need psychological validation / acknowledgment to move forward)
• Do one or both parties seem to have informational deficits? (basic assumptions for the divorce’s planning, or, gaps in detailed discoverable data)
• Would some artfully shared reality testing be helpful? (lawyers work with mediator to confirm client expectations of litigated result likely unrealistic; sometimes mediators work with lawyers to reconsider their expectations!)
• Has a seemingly impenetrable communication impasse developed? (parties or lawyers’s relationship interferes with reasonable opportunity to explore otherwise achievable settlement)
• Have the parties’ resources dwindled or been exhausted? (making a litigated resolution a no longer affordable luxury and any expedited approach the only feasible course)
• Could the case benefit from an experienced neutral’s vision or special expertise? (suggesting of substantive options that meet both parties’ interests, missed by advocates’ focus on only their clients’ position)

If the answer to any of these inquiries is “yes,” mediation should be explored and framed by these differing rationales.

2. Who To Mediate With? Choosing A Family Or Divorce Mediator.

As with many other issues in life, there is no “one size fits all” approach to choosing a family mediator. Most family lawyers instinctively limit their choice of mediators to an attorney-mediator (a lawyer limiting his or her work to mediation or devoting a portion — a daunting task, more about this later! — of his or her practice to mediation).

Because divorce is necessarily a creation of law, a lawyer’s training and real world practice experience (understanding how courts work and how orders or agreements are commonly or best structured) is often of great benefit to a successful divorce mediation. Mediation that includes a consideration of likely court outcomes with divorcing parties (sometimes desired or desirable, sometimes not) necessarily requires experience with how judges generally view certain legal or nonlegal issues. Nonattorney mediators may lack credibility and persuasiveness in this task — especially in lawyer-attended divorce or family law mediation.

Conversely, most family lawyers do not stay current with the latest clinical research regarding child development and the healthy structuring of (by way of example) overnights in parenting plans with young children. Many lawyers cite chapter and verse of books and resources premised on studies no longer considered authoritative.

Strong conflict resolution and remarkable interpersonal skills may successfully move many, if not most, family disputes forward. And, it is not the case that a mediator must have high substantive expertise in the area of the dispute, but … it often “can’t hurt,” no?

So, the selection of the right mediator for a given divorcing couple should always begin with an assessment of the principal issues in dispute:

• Sophisticated parenting issues (e.g., crafting a developmentally healthy timesharing structure given clients’ unique/unusual circumstances, special child problems or parenting strengths and deficits) will usually benefit from selecting a mediator with a rich mental health background. Most parents will choose mediated resolutions consistent with artfully shared insights into what works best for families and children with their unique constellation of concerns. The mental health mediator’s special expertise with parenting issues may be invaluable.
• More complex financial issues (e.g., spousal maintenance planning, and business division, retirement valuation, stock options assessment and other such matters) enormously benefit from selecting a mediator who has a substantial familiarity and comfort mediating issues with intricate financial and tax planning implications. The attorney-mediator’s substantive knowledge of settlement options may be invaluable.

Ultimately, experience is key, however. An experienced family mediator with a mental health background who possesses substantive legal, tax and financial expertise; consults frequently with lawyer peers; and knows how to frame and discuss spousal support issues with a divorcing couple — may be a much better choice than a novice attorney-mediator.

Similarly, an experienced attorney-mediator who consults with a reliable network of parenting consultants; becomes familiar with the literature and research regarding childhood development and divorce; and crafts a practiced structure to help parents consider such issues — may be a much better choice than a novice mental health background mediator.

Consider also the nature of a mediator’s commitment to professional dispute resolution. Attorney-mediators who exclusively limit their work to mediation often undergo an important transformation in their conflict resolution style and values. The full-time practice of mediation brings a neutrality and seasoned approach difficult for lawyers still also acting in the “part-time” role of advocating or litigating for other clients.

3. What Mediation Looks Like (A Quick Tour Through a Typical Divorce/Family Mediation)

Divorce Mediation With Lawyers Attending

Pre-Mediation Preparation

The most effective lawyer-attended mediations begin before the day of the mediation, with the providing in advance of confidential statements, or at least basic financial materials, to the mediator. We routinely review these materials and construct a theory of likely personal interests of the parties and their legal issues. After reflection and/or some research, we seek to determine what additional information may be helpful and design a strategy for the mediation to assist the parties in discussion of options and a resolution.

Commonly “Shuttle-Style” Mediation

When lawyers attend mediation, the mediator often briefly consults with them about the structure of process. For the most part, lawyer attended mediation takes place by “shuttle mediation” — with the mediator moving between separate rooms with each party and his or her lawyer. (Certainly, this is not always preferred. Highly collaborative parties and their lawyers may wisely choose to meet together in the same room with the mediator.)

There are tradeoffs in this approach:

Shuttle mediation is clearly a less efficient way to exchange detailed information, especially in financial mediations where both parties often ascribe different valuations to property or different incomes in their approach to support. We have found that often, moving between the two rooms with a laptop computer showing different scenarios or a single mediator-suggested variation, remedies some of shuttle mediation’s inherent inefficiencies. (We use large flat-panel television video monitors directly to communicate and discuss this disparity of data with the parties.)

Why, then, is shuttle mediation often preferred in family law and divorce cases, especially by lawyers and often by mediators? Most lawyers feel almost compelled in their role as advocates to respond to positions advanced by the other party or their lawyers — when sitting in the same room. Shuttle allows for some “venting” and evaluation without initiating a challenge to, or launching a debate with, the other lawyer or party.

Experienced mediators also work extremely hard to re-frame the issue creatively (and sometimes differently) in the two rooms of a shuttle mediation. This is not an issue of misleading either side. Most family law disputes and proposed approaches to settlement offer advantages and disadvantages to both parties; the mediator attempts to use his or her intellect and persuasive power to enable both parties to appreciate the benefits of a settlement option or options — from their own interests.

Shuttle generally begins slowly, with the mediator spending significant time in each room, summarizing the basics of a dispute (often gleaned in large part from his advance work with any preparatory materials shared by lawyers), and hearing the concerns (personal and legal) of the divorcing party. During this initial meeting, the mediator seeks to establish “intimacy” (a connection with the party and their lawyers that validates their concerns and interests) with each side. Then, as an approach to settlement may be developed, the mediator tends to move back and forth between the parties with increasingly shorter periods in each room.

Typical Duration

Most lawyer-attended mediations are a half-day in length (we schedule a minimum two hours but this is ordinarily insufficient for shuttle mediation) and many take most of a day with a break for lunch.

Efforts To Make Binding Mediated Agreements

Typically, when lawyer-attended mediation ends with agreement, lawyers have a great desire to make the mediated agreement binding. The Colorado Dispute Resolution Act (the Colorado law governing mediation’s confidentiality and related issues) arguably requires No. 1, a writing and No. 2, signature or approval of their lawyer to make any mediated agreement enforceable — when parties are represented. (This appears to be required whether lawyers attend or not.)

Because it is ordinarily impractical for the mediator or lawyers immediately to write up all the terms agreed upon during the mediation, some mediators use a tool to attempt to make binding a mediated resolution without a complete written agreement.

For example, in cases where lawyers find this helpful, we assemble all parties and their lawyers in a single room and typically dictate (we create a digital recording of) our understanding of the mediated resolution in all its particulars. We stop and determine — with all present — if there are errors in our understanding, and once the mediated agreement’s terms are accurately stated, we then obtain the assent and agreement of both parties and their lawyers on the recording.

To attempt to comply with the Colorado Dispute Resolution Act’s requirement of a signed writing, we have all involved to sign a written acknowledgment that the terms just dictated are conscionable, in the children’s best interest and are agreed upon as a binding resolution. This recording is preserved but not transcribed unless a dispute arises when the full Separation Agreement or other partial Stipulation is written. Many, though not all, judges may bind parties to these terms.

Divorce Mediation With Only The Parties Attending

In approximately 80% or more of our mediation practice, something remarkable happens: Folks actually come to mediation alone (yes, without their lawyers) to discuss and problem-solve directly with each other (and sometimes with neutral consultants) in crafting a plan for their divorce!

As paralegals you may never witness such a mediation, but we hope you will carefully consider it as a viable and often compelling option to assist your clients to move forward their family law case.

Ordinary Process

Prior to the mediation, we provide clients with a list of topics to consider and documents to assemble, to help them meaningfully prepare for our work together. (These inform the parties of financial data required to be disclosed by Colorado divorce law.)

In parties only mediations, we meet around a round table with both parties. Typically, we spend more time in a first session on the rules of our mediation process, since process is key in these mediations.

We typically next invite both parties to share a brief history, present circumstances and divorce concerns. We usually find it helpful asking some open-ended questions that may provide lots of insight into their dynamics (“Understanding your view might be quite different than your spouse, how is it that you find yourselves separating your lives at this point?”) and relative preparedness, emotionally or otherwise, for the mediation.

Using a Powerpoint presentation and a large flat-panel television video monitor or just a flipchart, we outline the issues to be considered and develop an agenda both parties can support for their time in that session. We prioritize with the couple broad topics and then consider issues one at a time.

Ordinarily, mediations without lawyers attending commence with the mediator providing a fair amount of education to the parties about their options. They move to the parties’ developing plans workable for their family with some sensitivity to how certain plans likely may be perceived by the legal overseers (their lawyers, if any, and the reviewing judge or magistrate).

Typically, we find couples choosing to mediate their divorce without lawyers attending meet with us several times to resolve all issues (children issues or more complex financial issues require another session or more). These couples return later to review a package including a draft Memorandum of Understanding (the “MOU”) which is the equivalent of a Separation Agreement but written in user-friendly terms (“We agree that Martha shall …”). We don’t allow clients to sign the MOU in our office; our view is that mediation (at least without lawyers attending!) should not be a pressure process, but rather mediation parties should be able to review such tentative expressions of their agreement with outside parties (professionals, including lawyers, accountants, divorce planners; or friends and family — whoever they wish), before formalizing their assent. In practice, it is extraordinarily rare that clients materially change the draft MOU.

We typically assist the clients without lawyers with their completing final Colorado divorce forms required to accompany the MOU; for parties represented by lawyers, their offices (typically meaning you paralegal folks!) generally prepare these ancillary other forms.

Mediation Without Lawyers: Potential Advantages

What are the advantages of mediation without lawyers present? Potentially, there are many, many advantages. A number of intense emotions, including feelings of personal loss, shame, alienation, fear and distrust, typically accompany divorce. Meeting together (especially early in the process!) honors these emotions and allows their safe expression, venting and release. Often, folks mediating directly with each other move forward with their lives much more quickly since these basic emotional needs can be suppressed or exacerbated by prolonged and nasty litigation.

Of course, there are parties where the power imbalances (obvious or subtle) present great challenges for a positive mediation and equitable result. Equitable in this regard may be consciously evaluated by the parties, however, in an other than “what would have happened in Court” analysis. Most parties are well aware that securing that courtroom result can exact huge tolls on parties’ emotional and financial health, their future relationship and the well-being of their children.

4. When To Mediate?

Mediation’s Timing, With Only the Parties Attending

Most divorcing parties who are not in acute transitional stress and in relatively good emotional health (okay, it is a divorce, right?) should be encouraged to meet as soon as possible with the mediator. Experienced professional mediators will delay the parts of their work requiring additional information, but the very act of a separated couple getting together and establishing a safe and mutual approach to their divorce almost always has long-lasting positive benefits and reduces folks’ anxiety.

If one party is still reeling from the other party’s unilateral and sometimes concealed plan to separate, however, it may make sense to postpone the mediation and allow therapy or the power of time to ready both parties for the work of divorce planning.

Mediation’s Timing With Lawyers Attending

Our experience is that lawyer-attended mediations should also not be inordinately delayed. Mediation at the last moment sometimes works because of the pressure exerted on parties to become realistic and settle. More often, however, positions have hardened and the opportunity to consider other alternatives the neutral might have envisioned is forever lost.

Nonetheless, if basic discovery has not yet been completed, financial mediation may be premature. Similarly, deferring a parenting dispute mediation until a parenting expert’s report is completed may make great sense. For most cases, the exchange of settlement proposals prior to mediation can be useful as well.

However, mediation’s scheduling in some cases should be expedited even prior to the completion of discovery or the exchange of settlement proposals. This may be particularly warranted when the parties’ emotional conflict is escalating, lawyers experience inordinate “personality conflict” early on (e.g., where difficulties in communicating worsen and maintaining their professionalism with each other is increasingly challenging), or financial pressures dictate advancing resolution of the case. Some lawyers also seek a mediator’s influence early when expectations of one side seem hugely at odds with their own understanding of likely court results or a tolerable range of settlement.

Conclusion: Family Law Paralegals Can Positively Shape Divorce Mediation’s Impact

Given their unique professional role, including their hands-on and consistent involvement with clients; their early familiarity with relevant data and issues in dispute; and their often detailed understanding of, and influence on, a particular divorce’s interpersonal dynamics, paralegals have a unique opportunity to shape positively the course of family litigation, through careful management of the mediation process.

Early assessment of extra-litigation options and particularly mediation allows paralegals to effectively schedule and prepare appropriately for mediation, make wise choices about the mediation process including selection of an appropriate mediator, and smartly time its scheduling.

Family Law & Divorce Mediation Preparation Outline & Critical Checklist

We invite you to download our two page Family Law / Divorce Mediation Preparation Outline and Critical Checklist in Adobe Acrobat’s Portable Document (PDF) format. This checklist is designed for divorce lawyers and their paralegals’ use — to be reprinted and included in your case files.

See also our article, Preparing for a Successful Divorce Mediation: A Family Lawyer (and Paralegal)’s Guide, with its “Top Ten Suggestions List” for effective preparation for family law mediation.