Family law is not the only practice area where lawyers often spend their first meeting with a client clearing up the client’s misconceptions about how legal processes work, most of them rooted in media stereotypes. Criminal defense lawyers probably have a memorized, two-minute spiel about how the criminal process is not how it appears in the movies, less than ten percent of cases go to trial, and when they do, defense lawyers do not say anything that prosecutors did not know that they were going to say. There is less time pressure when you are in a practice area such as personal injury or estate planning, but clients’ level of misunderstanding of the law would be astonishing if you were not so used to it.
As for family lawyers, they often have to talk new clients down from their fears of losing all their money and parenting time or, conversely, their fantasies of leaving their ex-spouses penniless and estranged from their children. The purpose of divorce cases is to divide the marital property fairly, and the purpose of parenting plan cases is to build a sustainable plan that the family can follow until the children reach adulthood. This means that family law attorneys usually spend part of the initial consultation with a new client explaining how the family law mediation process works.
Mediation in Divorce and Parenting Plan Cases
Most divorce and parenting plan cases go through a mediation phase, and more than three-quarters of them resolve without going to trial. In other words, the parties reach an agreement, with the help of their lawyers, about how to divide their marital property and debts or how to coordinate their parenting time. The judge’s role is only to sign off on the terms to which the parties have agreed.
While clients are unlikely to be enthusiastic about negotiating with someone who is so difficult that they had to go to court to resolve their differences, they will quickly begin to see mediation as a way to avoid the worst-case scenario. Negotiating with your ex is better than the court imposing its decision on you. No one wins or loses in mediation; instead, you reach a compromise.
If your clients could easily compromise with their spouses or co-parents, they would not be in family court. That is why they need you. If necessary, communicate often with the lawyer representing your client’s ex. Remind your client that it is important not to rush through mediation, or else you will end up with an unsatisfactory agreement, and you will have to come back to court and modify it. Also, remind them not to be stubborn, or else they will have to go to trial, where the judge is the one who makes the decisions.
When is Mediation Not Appropriate, and How Can Family Lawyers Help in These Cases?
The court does not order couples to go to mediation if it is unsafe for them to interact directly with each other. This usually happens when a court has issued a protective order or restraining order that is still in effect, as in cases where there is a recent history of domestic violence. Since your client is not interacting directly with his or her ex, it is important to build trust with your client and reassure him or her that you are acting in your client’s best interest to get a fair outcome in the case. This is equally true whether the client you are representing is the petitioner or the respondent in the restraining order case.
Collaborative Divorce: Family Law Mediation Outside the Family Court System
With the rising popularity of collaborative divorce, family law attorneys have even more opportunities to use their mediation skills outside the divorce. It is worthwhile to expand your services to include divorce if your client base can afford this service. In collaborative divorce, you and your client sign an agreement with your client’s spouse and the lawyer representing him or her. Then you begin the process of negotiating outside of court to draft a property settlement agreement and, for families with minor children, a parenting plan. If the process is successful, the couple can file for uncontested divorce, and the court can simply sign off on the documents they drafted collaboratively. You may or may not involve a professional mediator in collaborative divorce. Couples who can afford collaborative divorce often choose it because it seems less adversarial when they do not involve the court in their divorce negotiations.
Sources
https://www.divorcenet.com/resources/divorce/divorce-mediation/the-stages-mediation.htm
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