Monday, July 11, 2016

Should Mediators be Held to a Higher Standard?

The more I write and speak about mediation, the more opportunities I have to hear from people who still have questions about how it works.  Recently one attorney on LinkedIn asked me about whether there are rules for financial disclosure in mediation like there are in court.  This is, in fact, a common complaint about mediation; that many mediators don't require the parties to share information that the same parties would have to share in court.  Specifically in Massachusetts there is a rule, called Probate and Family Court Supplemental Rule 410, which requires the sharing of certain documentation in a divorce case within the first forty-five days of the case.

Should mediators be enforcing this rule and requiring financial disclosures in a non-litigated case?

I know mediators who would answer this question yes and others who would answer no.  My answer is no, mediators should not be enforcing financial disclosure (and I explain why below).  That answer troubles many lawyers because they fear that clients will make bad and uninformed decisions in mediation that they supposedly wouldn't make if they went to court.  However, that concern is based on a false equivalency.  Those who have this concern about mediation are usually comparing unrepresented parties in mediation with represented parties in court.  They are comparing apples and oranges.  When we remove that misconception, then we can stop holding mediation to a higher standard than other processes.
Those who have this concern about mediation are usually comparing unrepresented parties in mediation with represented parties in court. They are comparing apples and oranges.
Pro se Mediation v. pro se Litigation (apples to apples):

Court rules don't automatically guarantee disclosure because the court doesn't check to see what discovery has been exchanged or enforce specific discovery unless a party makes a request, and many unrepresented parties don't know how to make that request.  Similarly in mediation, information may not get shared unless one party knows to request it.  However, there are some advantages of the mediation process over court, even when attorneys aren't involved.

Mediation is a voluntary process, which has both pros and cons.   One con is that there are not enforceable rules about disclosure like in court. However, I inform clients that if they do not produce information requested by the other party then that person may not continue to voluntarily participate.  That's a motivation to cooperate that people don't have when they are forced to participate in a court process.  

Judges and mediators also have something in common, as neutrals they can't provide legal advice. Mediators, however, can provide legal information.  This is something the court process doesn't allow Judges to do, both practically given time restraints and for fear of how it might appear.   While a mediator can't require the production of documentation like a judge can, the mediator's ability to educate the parties about legal information is often much more useful because it empowers parties to know what information they need and how to apply that information.  What good is financial disclosure if people have no idea what to do with it?

Finally, mediation is a self-determined process so the parties can decide what level of financial disclosure is necessary.  Some cases may not require all of the Rule 410 documentation, and some will need much much more.  Rule 410 in court could give some parties a false sense of security if they didn't know to ask for more.  When parties lack knowledge or experience they are more likely to make bad decisions, which is why it's always better when parties are represented, regardless of the process.

Mediation with Attorney Representation v. Litigation with Attorney Representation (oranges to oranges):

Having a lawyer involved in a case provides many advantages to a party.  The lawyer's experience is likely to lead them to ask questions that the party may not know to ask on their own, and they can advise the party on how the law applies to their case.  The mediator, even when they are a lawyer by training, is not acting as a lawyer for either party so they don't provide these services.  The best protection for both parties whether participating in mediation or a court process is to hire experienced counsel to help them know the right questions to ask.  
The mediator, even when they are a lawyer by training, is not acting as a lawyer for either party.
Mediating with attorney representation can happen with the attorney in the room during the mediation or just advising the client in separate meetings.  Either way, mediation has some advantages and some disadvantages when compared to the court process with attorneys involved.

An advantage of the court process is that the court can create enforceable rules and orders and this provides protection when one party is the "bad actor."  When protection is necessary, for example when one party is trying to hide information, the law can be an equalizer, a hammer that nails down necessary compliance.  However, this advantage can also be a disadvantage when there isn't a "bad actor."  In divorce cases, there isn't always a good guy and a bad guy, but "if the only tool you have is a hammer, [it's tempting] to treat everything as if it were a nail."  The mediation process doesn't force parties into an adversarial process and instead gives them the opportunity to focus on the problem instead of the people.

Another advantage of the mediation process is that it is flexible.  Lawyers and parties are often frustrated by the court's schedule moving too fast or too slow, or both.  Mediation allows parties to move at their own pace and to determine both the process and outcome that is best for both of them.

Finally, mediation is usually less expensive than court, and provides more value.  Consider a meeting to resolve a parenting plan vs. a court hearing to do the same.  In a meeting with a mediator and attorneys, the parties are paying for three people instead of two so the per hour cost may be more.  However, in a meeting all of the focus is on settlement and that usually means faster resolution than in court where the lawyer has two jobs: they have to prepare for the fight while at the same time trying to settle.  This makes it harder to settle and therefore less likely.  Also, time in court often involves a lot of waiting around, which is time the parties are paying attorneys but not receiving value.

Also, parties are more likely to follow agreements than comply with orders, because they have buy-in to the process of creating the agreement.  This means that there is a long-term savings by reducing the likelihood of additional future conflicts replaying the same issue over and over.

Apples and Oranges:

I previously wrote an article entitled "Should we also talk about when Mediation fails?" which was re-posted by Mediate.com.  That article tries to honestly address the fact that sometimes mediation fails.  Despite the advantages not every mediation will succeed, and not every mediator is a good mediator.  But I've noticed lately how quick lawyers are to point out bad mediators, and how slow they are to point out bad lawyers.  Where are the complaints from the bar about all the poor agreements drafted by litigators, or caused by bad representation?

Both the legal and the mediation professions benefit from high quality legal representation and from high quality mediators.  We should be encouraging each other and partnering as much as possible to help resolve conflict effectively, instead of comparing apples and oranges in an effort to tear each other down.  As a mediator, I truly appreciate when my clients work with effective experienced counsel that understand mediation.  I hope that more attorneys will take the time to educate themselves about mediation and even take a mediation training so that they can understand that in most cases it is also true that lawyers can benefit from having effective experienced mediators involved.

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