ATTORNEYS AND MEDIATORS
by Allison Quattrocchi, J.D.
- Family Mediation Center clients are ALWAYS encouraged to seek independent counsel; some will; some won’t, some will be told we will not proceed without it.
- The role of attorney for a client in mediation is that of CONSULTANT. Clients in mediation are committing themselves to be cooperative. Neither party nor a party's attorney should be taking any unilateral action that has not been agreed upon by both parties. To do so may jeopardize the mediation and the ability of the parties to continue to be cooperative. Their perception, regardless of its validity, that "the other party" is trying to take control or get a leg up can be disastrous.
- As attorney/mediators, we often draft the pleadings at the request of our clients. In doing so, we almost always insist that, at a minimum, they have the documents reviewed by independent counsel.
HOWEVER, if a client is referred to us by an attorney who is representing that client in the action or an attorney becomes involved in the case, we usually will not draft the final legal documents without asking the attorney whether (a) the attorney would rather have us draft a Memorandum of Understanding from which an attorney will then draft the final pleadings OR (b) whether the attorney is comfortable with us drafting the legal documents subject to attorney review. There are times when clients express their wishes to have the pleadings drafted by their mediator because it is someone they both trust and believe to be impartial. It is our hope any attorney involved would respect those wishes. If an attorney is an Attorney of Record with the Court, the paperwork can be prepared under the name of the spouse who is not represented, or the Attorney of Record can sign off on the documents or file a Motion to Withdraw.
- Attorneys are valuable to the mediation process. Among other things, they can be especially helpful in getting clients to deal with reality, or alternatively, helpful in getting the other spouse to deal with reality. A conciliatory but firm letter to the client laying out reasons why an agreement may not be in that client's best interest is a tool the mediator may seek to help balance the process and move the other spouse from an unreasonable position.
- As a condition of the mediation process, the parties have agreed to return to the mediation to work out any issues that the attorneys raise. Unless the parties have terminated mediation, it is neither helpful nor respectful of the mediation process, or of the clients, for an attorney to start negotiating with the other attorney in the case.
- If the attorney is getting mixed messages from the client, uncertain about the dynamics between the parties, or sees himself or herself getting caught in the "bad guy" syndrome, it is best if the attorney contact us for more information. The mediator's perspective, having worked with both parties, can bring some balance and insight that may not be available to the attorney who must, understandably, rely on what the client is saying, or perhaps NOT saying to the attorney.
- We will try to provide the clients with as complete a package of documentation as possible for legal review. We prefer not to send things directly to the attorney as mediation is a process which places the responsibility for the agreement directly on the clients. THEY are in charge of their relationship with the attorney. For this same reason, we are very careful about balancing our interaction with the attorneys in order not to compromise the impartiality of the mediator or the confidentiality of the mediation. The sensitivity of the client to that impartiality will vary with the client.
- Lastly, mediation is a confidential process protected by our contract with the client and by statute (A.R.S. §12-2238).
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