The Collaborative Family Law
Process 101: A New Role for the
Family Law Attorney
By: Dawn Anderson
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Introduction
Family attorneys need to learn a new way
of advocating for their clients as mediation
becomes more mainstream and is more
likely to be requested.
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Agenda
Mediation.
 Fears and benefits.
 Styles of mediation.
 The mediator.
 The role of the family attorney in
mediation.
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MEDIATION
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“[A] process in which a mediator, an impartial
third party, facilitates the resolution of family
disputes by promoting the participants’ voluntary
agreement. The family mediator assists
communication, encourages understanding and
focuses the participants on their individual and
common interests. The family mediator works
with the participants to explore options, make
decisions and reach their own agreements.”
- Model Family Mediation Standards
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Fears About Mediation
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Waste of time and money.
Same thing as settlement conference.
Compromise means giving in.
Lack of attorney control.
Client wants their day in court.
It is hard to find a good mediator.
Attorney isn’t being an advocate.
Loose the edge if share info.
The other side will lie or hide info.
Shouldn’t use in dom. violence cases.
Attorneys will lose money!
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Benefits of Mediation
Saves time and money
 Allows for win-win situation
 Allows for creativity in solutions
 Allows for healing
 Gives the client the opportunity to be heard
 Client learns how to handle conflict
 Less harmful to the family unit
 Allows for continued relationship
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Styles of Mediation
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Evaluative
– Mediator evaluates the case
– May make recommendations
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Transformative
– Reflection/Summarize
– Not agreement focused
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Facilitative
– Widely used/accepted
– 3rd party neutral
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The Role of the Family Attorney
in Mediation
Counselor
 Negotiator
 Evaluator
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The Lawyers Role As Counselor
Gatekeeper to the process
 When to use the process
 Selects the mediator
 Setting the date
 Location
 Who will attend
 Prepare case file
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1. When to Use the Process
Several Factors to Consider:
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Is this case safe to refer?
Continued relationship of parties?
Will court be stressful for client?
Does client have limited funds?
Is time or location important to client?
Do you have a non-traditional family?
Is the case high-conflict?
Is there a power imbalance among the parties?
Would your client benefit from the privacy of mediation?
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2. Selects the Mediator
Training
 Subject matter experience
 Reputation
 Style
 Client comfort level
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3. Setting the Date and Time
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Date:
– Anytime
– Before, during or after case
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Time:
– Traffic
– Parking
– Child care
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4. Location
Neutral location
 Comfort level
 Unbiased perception
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5. Who Will Attend
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Lawyer?
– Not generally in court referred domestic
– Private sessions – up to parties Comfort
person?
New partner?
 Comfort person?
 Child?
 Expert?
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6. Prepare the Case File
Check facts
 Check law
 Re-check deadlines
 Summary to mediator
 Visual aids
 Learn more about the process
 Review agreement to mediate
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The Lawyer As the Negotiator
Mediation is a form of negotiation.
 Prepare the client for mediation.
 Coach the client.
 Advice and develop options.
 Communication in the mediation.
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1. Prepare the Client
Explain the process in lay terms
 Explain the mediators role
 Explain ‘good faith’ and confidentiality
 Benefits and risks
 Compare to litigation
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2. Coach the Client
Interests v Needs
 Clear goals
 Talking points
 Avoid additional harm
 Focus on issue not people
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3. Advise and Develop Options
Brainstorm
 BATNA
 WATNA
 Expand the pie
 Legal perspective
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4. Communication in the
Mediation
How to communicate with lawyer during
 Note-taking
 Emotions
 People skills
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The Lawyer As the Evaluator
Review agreements
 Memorialize the agreement
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1. Review Agreements
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Scrutinize for practicality
Check the clients comfort zone
Ensure fairness
Re-negotiate any unraveled issues
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2. Memorialize the Agreement
Draft a consent order
 Submit to the court
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Where to Get More Information
Mediation classes at UB
 MICPEL classes
 Websites
 FLA
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Summary
The collaborative approach used in
mediation can be very beneficial to clients
involved in a family matter. Attorney’s
who are more comfortable with their role
in the process are better able to serve their
clients needs. As a result clients will have
their emotional needs met in a cooperative
environment resulting in a better chance of
obtaining a workable outcome.
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Finally, family attorneys will benefit by
increasing their job satisfaction, reducing
their work-related stress and having
happier clients.
This is truly a win-win situation.
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