General Practice, Solo & Small Firm DivisionTechnology & Practice Guide

American Bar Association
General Practice, Solo, and Small Firm Division

The Compleat Lawyer, Fall 1996, Vol. 13, No. 4

Family Mediation
Good for clients, good for lawyers


Nancy S. Palmer is certified by the Florida Supreme Court as a Family Mediator, a Civil Mediator, and as a Primary Mediation Trainer. She practices full-time as a mediator and mediation trainer. William D. Palmer is certified by the Florida Supreme Court as a Family Mediator, a Civil Mediator, and as an Arbitrator. He practices law in Orlando, Florida, in the areas of litigation, family law, appeals, and mediation and arbitration.

General practitioners don't always practice family law, but that doesn't stop clients, neighbors, friends, and family from bringing in their family woes anyway. Other general practitioners who practice family law may be interested in developing a family mediation practice.

If you fall into the first category, your initial instinct may be to reluctantly accept the case to avoid alientating your client or friend, or to tell him or her again that you don't know anything about family law and provide a referral to a family law specialist. However, a better alternative--for both you and your clients--may be to share some basic facts about family mediation. You'll assist them in resolving their family law problems as painlessly as possible, and preserve a friendship or other relationship in the process.

If you fall into the second category, it may be time for you to start thinking about developing a new practice area--a family mediation practice. Before you print up business cards for your new area of expertise, make sure you understand exactly what it is that family mediators do. (See "Representing a Client in Mediation.")

Family mediation can be an economical, confidential, and nonadversarial process for the resolution of family disputes. Disputes resolved through mediation often allow all parties to save face and move forward with an integrity not available when parties resolve a dispute using a win-lose adversarial approach.

Why Would a Client Choose Mediation?
People don't always think clearly when it comes to family conflicts, but there are several good reasons to choose mediation over litigation. Mediation helps parties:

Put the children first. If the parties have children, there are critical reasons to choose mediation over litigation. Extensive research on children shows that it is not the separation or the divorce that causes the most emotional scars, but rather the degree of conflict between parents both during and after the divorce process. (See Judith S. Wallerstein, Ph.D., Second Chances: Men, Women & Children a Decade After Divorce. New York: Ticknor and Fields, 1989.)

Develop co-parenting skills. Mediation offers an opportunity to develop communication skills with a former spouse that can be helpful for years to come, especially when there are children involved. Couples who mediate successfully often find it easier to look back at their agreements with pride and look forward to big events in their children's lives, such as graduations and weddings.

Avoid the bitterness of trial. If a couple reaches settlement through mediation, the wounds that often come from trial are not there to inhibit the parenting relationship. Since mediation can occur even before a lawsuit is filed, the damage from filing accusatory pleadings and participating in pretrial hearings can also be avoided. At an early stage, any discovery that might be needed to obtain a fair result in mediation can be obtained through informal (and far less adversarial) processes than would occur in litigation. Minimizing this conflict means that parents can approach happy events in their children's lives, and the prospect of seeing their ex-spouse, with less fear and trepidation.

Save money. Since there is a possibility of substantial savings in attorney fees, more marital assets will be available to meet the many needs of both the children and the former spouses.

Take advantage of a mediator's expertise. Family mediators are truly knowledgeable about and experienced in family law issues. In litigation, participants often expect the judge to have specialized experience or training in family law matters, but this is not always the case. In many states, no specific training or experience in family law is required for an assignment to the family bench. Many judges indicate that they are uncomfortable making decisions about normally private matters.

Keep private matters private. Many litigants would prefer to have their disputes remain in the confines of a privileged mediation session, rather than be made a part of the public record through judicial proceedings.

Air their dirty laundry--and get over it. Mediation allows issues that would not be admissible in court under applicable evidence rules to be discussed. This discussion may enable the parties to move forward and develop constructive options for amicable resolution of their divorce proceeding.

Some clients who are harboring feelings of anger, revenge, hurt, or betrayal do not realize that many of the items they are so anxious to expose in a divorce proceeding may never be discussed at a trial, such as a party's adultery in a no-fault divorce state. These disputants often leave the courthouse frustrated that they were not able to discuss these important matters, and that anger may be directed toward their own counsel.

Control the outcome. No judge can possibly understand the intricacies of a relationship as well as the parties; thus, no judge can structure a resolution to a particular problem as well as the parties themselves. The self-determination of an outcome available through mediation significantly increases the compliance rate with such settlements, as opposed to judicially imposed solutions, which can lead to seemingly endless appeals and petitions for modification. (See "Are Women More at Risk in Mediation than Men?")

Why Would a Lawyer Promote Mediation? If a lawyer doesn't have a family practice, he or she may consider referring clients to a family mediator rather than another lawyer. But even a lawyer who practices family law might want to think about referring clients to a family mediator, or developing a mediation practice of his or her own. (See "Representing a Client in a Mediation.") Referring clients to family mediation might help lawyers:

Avoid problems getting paid. Family litigation has a high incidence of malpractice claims. The majority of those suits come in response to suits filed by lawyers to collect unpaid fees. Family lawyers have larger than average receivables problems, and many reasonable bills go unpaid because the lawyer fears a countersuit. When a retainer runs out or a receivable becomes too large, it is often too late for the lawyer to withdraw from the case successfully; he or she ends up trying the case with little hope of collecting payment for the time expended, especially if the result is not exactly what the client wanted.

Offer clients lower fees, improving the odds that they'll be collected. Fees are usually much lower if settlement is reached through mediation, and more acceptable to the client even if settlement is not reached but alternative dispute resolution methods were tried first. Clients are appreciative of their lawyer's efforts to minimize the expenditure of financial and emotional resources.

Preserve their quality of life. Family law cases are often emotional. The client often perceives numerous "emergencies," causing the quality of life of the family law practitioner to suffer. If a lawyer takes on a family law case as a favor to a friend or client who has his home phone number, the lawyer's quality of life will in all likelihood suffer.

Avoid grievance claims. In family law, grievances can come from several sources, including relatives, witnesses, and former in-laws who have no formal relationship with the lawyer. Transference of anger to a family lawyer may also occur years after a divorce. Once the dust settles and the litigant becomes more rational, he or she may refuse to take responsibility for the warlike conduct during the divorce, instead blaming the lawyer.

The Family Mediator
A mediator should have extensive experience working with divorce clients. A good mediator is familiar with and can gather the best resources available for resolution of the parties' disputes. Family mediators receive specialized training in the psychology of divorce, domestic violence issues, substantive family law, and the economics of divorce.

Although family mediation is primarily used in divorce actions, it has many other potential applications, including prenuptial agreements, adoptions, juvenile dependency proceedings, and custody or support modifications. In addition, a family mediator may be preferable to a civil mediator in other, non-family areas, especially in cases concerning people involved in ongoing relationships, such as probate disputes, neighbor disputes, employer/employee disputes, doctor/hospital disputes, and lawyer/client disputes.

Family Mediation Training
Appropriate family mediation training includes extensive instruction about the mediation process, recognizing domestic violence relationships, substantive family law, and rules and methods to avoid unbalanced power in mediation. Depending on the requirements for certification, certain nonlawyers may be eligible to serve as certified family mediators, including mental health professionals, accountants, and clergy. (See "Developing a Mediation Practice.")

Training is offered by the ABA Family Law and Dispute Resolution Sections, private mediation organizations, and individuals. If mediators are certified by a state body such as the court system or a bar organization, training instructors often must be certified as well. Certification may require 40 hours or more of specialized training, and often involves role-playing and internship or observation requirements. (For information on ABA-sponsored mediation training, contact Jennifer Dabson at 202/662-1687.)

Many states have certification requirements for family mediators, and certification is available through the state court system or bar association. Other states have no such requirements; mediators either are not certified by anyone or are certified by private organizations that provide or evaluate mediation training programs.

Are Women More at Risk in Mediation than Men?
Some commentators have suggested that women are at risk of unfair resolutions in mediation, but that charge is unfounded if a mediation is handled correctly by a knowledgeable mediator. Arguments that mediation is harmful to women are generally based on the premise that women cannot be adequately empowered and are generally the "ignorant spouses" who have less knowledge of the relevant facts than their husbands and therefore cannot properly protect themselves.

In addition to the fact that such presumptions are inaccurate in many scenarios, these arguments also ignore the evidence of gender bias in the court system, which often leaves women in disadvantaged economic circumstances for several years after a divorce compared to men, who much more quickly return to their pre-divorce economic position and then quickly move beyond that point.

The notion that mediation is disadvantageous to women incorrectly presumes that any inequality in knowledge or power between the spouses cannot be remedied through the use of available resources, including the involvement of trained mediators and informed legal counsel. However, if domestic violence is involved, it may not be possible to remedy the power imbalance even with qualified mediators and counsel. In such situations, mediation is usually not appropriate.

The woman who goes through the mediation process has an opportunity and ability to become more independent, giving her a better chance at success in life when the case is over.

Copyright (c) 1996 American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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