CCDM

As private mediation becomes an accepted method of resolving the issues presented in a divorce, increasing numbers of clients are asking lawyers to provide a new kind of service, as “consulting counsel” for them in the mediation. Since most clients in mediation choose to confer with legal counsel at some point in the process, this has created a new area of practice for family lawyers. And it has raised significant questions concerning how to practice in this new field. The purpose of this article is to help family lawyers to define this new role.

Clients now seek the services of lawyers who are knowledgeable and supportive of mediation, and who posses the skills and knowledge base to work effectively as consulting counsel. Lawyers often play a proactive and very important role in mediation. Stated broadly, the basic aim for consulting counsel is to offer information, assistance, and advice to a party to assure that he or she makes good decisions, based upon a full understanding of the law and possible outcomes.

A lawyer asked to perform the role of consulting counsel in private divorce mediation has to address several issues:

How to define, with the client, the scope of counsel’s work, including the bounds of discovery?

Lawyers pose these questions constantly. It is hard for them to know the answers because they are trained primarily to be effective representatives in an adversary system of law. Though more schools now offer courses in alternative dispute resolution, and many offer clinical courses in mediation, anyone who has attended law school knows that American legal education focuses primarily upon honing adversary skills, through reading and discussing litigated cases, as well as through clinical work.

It is my intention, through this article, to provide family lawyers with answers to these questions. Specifically, I want to lay out a basic outline of practice for attorneys who represent clients using private mediation when counsel does not attend or participate directly in most mediation meetings. A secondary purpose is to help clients considering choosing mediation to clarify their expectations for consulting counsel’s important role in the process.

There is no single model of mediation. Basically, private divorce mediation is a voluntary process in which a neutral professional helps the parties resolve the issues they want to resolve. By its nature mediation is a flexible, adaptable process that can be used in a broad range of contexts to resolve a variety of conflicts. Nonetheless, for purposes of this article it is important to lay out the basic mediation framework under discussion.

It is important to emphasize that by ‘private mediation’ I refer to a voluntary process. While in some jurisdictions divorcing spouses are required to attend mediation meetings -- especially when custody issues remain unresolved -- this article focuses on the majority of situations, in which the parties use private mediation voluntarily. Private mediation can be used to develop a complete divorce settlement, or to resolve just one or a few issues, such as custody, property division or alimony.

The mediations most often occur at the mediator’s office because it is a neutral site, which presumably favors neither party over the other. Ordinarily, most discussions are conducted in joint session, with both clients present in the mediation room at the same time. However, sometimes the mediator may choose to talk briefly with each party in separate meetings, which are called ‘caucuses.’[2]

Consulting counsel usually works with his or her client in between mediation meetings, and is most often not present at the actual mediation meetings. This is not to say that counsel is per se excluded from meetings. There are times when the presence of one or both attorneys is useful, especially at the end of the mediation, when agreements are being finalized or specific options evaluated.

The mediator is a neutral professional. By ‘neutral’ I do not mean that the mediator does not have any point of view or opinions; we all have those. Rather it means that the mediator does not actively take the side of either party, such as by strategizing with one against the other, or helping one to get the best deal for him- or herself only. Equally important, mediators, as opposed to arbitrators, do not have the authority to impose a settlement. Instead, the mediator’s purpose is to help the parties develop a settlement that works well for them and their children, and which will result in as few post-divorce problems as possible for everyone concerned. In some cases the parties will give the mediator the power to make recommendations, but this is not currently done on a wide scale in most areas.

When the mediator is an attorney licensed to practice law in the jurisdiction, and when permitted[3], he or she often drafts the legal agreement encompassing the parties’ agreements, most often called a ‘separation agreement.’ This is done for at least two reasons, both client-driven. First, clients often ask attorney mediators to draft settlement agreement because they want the professional who sat at the mediation table – and presumably best understands the nuances of the settlement -- to do the drafting. This way, the drafter can capture the parties’ specific desires, priorities and emphases. Equally important, clients believe that the mediating attorney has an obligation to draft neutrally, rather than favor one client over the other through the drafting.

When the mediator is not an attorney, he or she usually compiles a ‘memorandum of understanding’ outlining the tentative agreements the parties have reached in mediation. In almost every state, in order to avoid charges of unauthorized practice of law, this document should always be a non-binding rendition of the mediator’s best understanding of the parties’ intentions, and is often written in the form of a letter to the parties. In any event, the memorandum of understanding should not be anything that a reasonable person would confuse with a legally binding agreement. The legally-binding separation agreement is then drafted – based on the memorandum -- by a licensed attorney who is either affiliated with the mediator or is one of the parties’ consulting counsel.

Divorcing couples use mediation for a variety of reasons. It is worth noting that quite often parties themselves don’t agree with each other as to exactly why they have chosen private divorce mediation -- but they do agree to come to the table. In my experience, parties choose mediation because it leaves them feeling more in control of the decision-making, is less expensive, often faster, and is private. Most everyone using the process also does so because it dispenses with what they perceive to be the nasty tone of adversarial divorce; mediation provides greater peace for the family and helps to shield children from explosive conflict.

As discussed generally above, the role of consulting counsel in private divorce mediation is to provide information, assistance, and advice to one party to help insure that s/he makes good, durable choices based upon full information. In some ways this does not differ all that much from the role lawyers are used to taking in adversary representations; but in other ways it is quite different. The similarities have mostly to do with providing the client with information concerning the law and possible outcomes, as well as helping the client to remain realistic about possible settlements. The differences, as described in more detail below, have to do with negotiating strategy, as well as who actually does the majority of the negotiation (the client does) and who has control over the case, both in terms of process and settlement (again, the client does).

It is worth noting at this point that in terms of strategy, consulting counsel’s responsibility in private divorce mediation is very different from the zealous adversarial representation family lawyers are sometimes used to providing. The key is to help the client, from the sidelines, to successfully conclude a settlement that meets as many of his or her needs as completely as possible, as well as those of the other spouse (more on this later), and which the client believes is fair overall, based upon all reasonably available useful information. Though a few clients will want this, in the vast majority of cases the job is not to help the client to negotiate down to the last penny or to crush the other spouse. Many clients will say that leaving something on the table for the other spouse is acceptable to them if doing so moves the settlement process along -- and if the overall settlement meets their financial needs or some other need such as a desire for finality, peace, or retention of privacy. Lawyers should remember that as is the case in all negotiations, each client values different things differently; given the control mediation clients often have to develop settlements customized to their needs, this can become especially pronounced in mediation.

Consulting counsel is not always necessary in mediation, and some clients choose to dispense with using an attorney of their own, which is of course their right. However, since in the majority of cases it is a good idea for clients to have consulting counsel, in my experience the better mediators strongly encourage each client to retain counsel of his or her own from the outset of the mediation. Most clients do opt to use consulting counsel at some point in the process.

There are instances in which it is more crucial for clients to use consulting counsel. For example, if the mediator is not an attorney, clients should have an advisor who can fill them in on the relevant laws, how they might apply in their case, and what might occur at trial.[4] And they will also need someone to draft a legally binding agreement at the conclusion of the mediation. Equally important, even if the mediator is an attorney -- and can provide some or all of these services when permitted to do so -- clients often value the individualized advice and help with strategy that mediators, as neutrals, most often will not provide.

Each mediation client will want a slightly different level of service from consulting counsel, and, as described in greater detail below, consulting counsel and the client should come to an understanding about the specific level of service to be delivered. But lawyers should be warned that most mediation clients do not want their consulting counsel to call all the shots or take over the mediation. In some respects, mediation is a response to the lack of control over decision-making that clients sometimes report feeling in litigation. So, in most cases, the idea is to act as an outside aid to the client to facilitate his or her own decision-making. This includes, except in special circumstances, leaving the client in charge of the mediation process itself. Lawyers who attempt to ‘take over’ the mediation – by insisting on attending all meetings or being in constant contact with the mediator – rob their clients of the autonomy which often attracted them to mediation in the first place. These attorneys will often end up losing the representation or with a dissatisfied client. But this does not mean to say that consulting counsel is to remain passive throughout the case, left only to ‘rubber stamp’ the final settlement agreement. Lawyers who do this leave their clients vulnerable to possible overreaching by the other party, and, more important, without the crucial advice most clients need or want. So, finding the specific balance that meets each client’s specific needs and personality is critical, and requires some practice. Please understand that this is not a role all lawyers wish to take; in my area I know of at least one attorney who will not accept consulting counsel engagements.

Consulting counsel should keep in mind the following specific points when defining his or her role with the client.

In most instances of which I am aware, clients usually contact consulting counsel after having made the choice to use private mediation, and sometimes after having begun the process. This means that the parties have for the moment committed themselves to resolving the issues by agreement and through mediation – and the client has come to you for individualized help in this endeavor. However, having said this, it is often a good idea to at least check in with the client to be sure he or she is comfortable with the choice of mediation. For example, cases involving substance abuse or domestic violence can require special care, and may not be appropriate mediation cases.[5] But this is different than second-guessing the client from the outset. Unless you discover substantial evidence that your client has made a terrible and irreversible mistake by being in mediation, you should support the decision to be in mediation, at least for the moment, help your client through the process, and never disrupt or undermine the process -- even if you might have done something different were you the client. Remember that every attorney has had clients who have made decisions with which he or she personally disagrees but pose no substantial danger, and nonetheless we all find a way to support the client’s chosen course. And in my experience, lawyers who file barrages of motions and send hostile letters can easily destroy the mediation, often to the consternation of their own client. However, if you truly object to the mediation or believe that you can not be of help in the way the client wants, you should absolutely discuss this with your client. In extreme cases, you can usually discontinue your engagement with the client, letting the client know your reservations.

Equally important, lawyers who serve as consulting counsel need to take a more global view of the case. This differs from the typical adversarial approach of helping the individual client to focus exclusively on what is to his or her best interest -- regardless of the potential disadvantages to the other spouse or the explosive effect that taking an extreme position might have on the negotiations. This is because parties often choose mediation because it is a less adversarial, problem-solving approach. The goal is to work out balanced agreements that work for everyone. This kind of result usually increases the parties’ satisfaction with the deal (and with counsel’s services), decrease ‘deadbeat’ problems, and can reduce substantially the need for post-divorce intervention, as clients learn how to deal with each other in a businesslike fashion. So an outcome which is great for one party but terrible for the other might be fine in the adversarial setting of contested litigation, but ordinarily has no place in mediation. And clients usually want advice from consulting counsel that is consistent with this macro objective. Helping your client to develop solutions that will work well for all parties are more likely to be acceptable to everyone and will help your client to move the negotiations along successfully.

Though everyone seems to know someone who has been divorced, and the concept of divorce itself is not by any means foreign to Americans, very few people know much about the ins and outs of the divorce process itself. And what people think they know or have heard from others is often wrong.

So you should not assume that your consulting clients have any specific ideas concerning the possible roles you might take as consulting counsel, or if they do, that these notions are consistent with yours. Therefore, as in any engagement, it’s your job to outline the possible roles you might take, what each entails -- and does not entail -- and then to button down the specifics in your engagement letter. This is especially true for clients using mediation, for two reasons. First, since the process is so flexible, there are many different ways to use consulting counsel, and it is important to get agreement on this early on. Second, mediation in some areas is only beginning to see widespread use, and clients in these areas may be less familiar with the possible roles consulting counsel might take.

You will likely find that given the adaptable nature of mediation, your role as consulting counsel will differ from case to case. This is different from most lawyers’ experience with the adversary model of litigation, in which counsel’s role is usually more or less consistent from case to case. Some clients who use mediation will negotiate their whole agreement and only work with consulting counsel to go over a written settlement agreement. Others want their lawyer to be involved from the outset in each step of the case. And still others want counsel to perform discrete tasks, such as strategizing about the negotiations, reviewing underlying financial information, or helping them to understand applicable law, what a judge might do, or possible solutions. Lawyers must remain flexible in delivering service to meet each particular client’s needs and circumstances. Insisting that all clients work with you on your terms will likely mean a short career as consulting counsel.

Once counsel and client have discussed fully and agreed upon the scope of the representation, it is extremely important to put this in writing in the form of an engagement letter. This prevents misunderstandings and can provide important protection for consulting counsel in the future, since in most cases the scope of the work will be less encompassing than in a full-service representation. Following this article are the relevant portions of my basic consulting counsel engagement letter. Naturally, I modify this general format to meet each client’s specific needs.

Be careful to understand that being consulting counsel is as much about what you will not do for the client as what you will do. In general, clients want your counsel, knowledge, expertise and advice -- but without the zealous adversary representation. When serving as consulting counsel I often find it useful to outline specifically in the engagement letter what I have been asked not to do. This avoids misunderstandings as the case proceeds; by doing so I make absolutely certain that the client understands the pieces of a full-service representation I will not perform, so he or she can not later hold me to that of performance having authorized me to do less.

Remember that the client is ultimately in charge of the scope of the representation. However, you have the right to advise the client about the dangers of unduly restricting your work. And these dangers, if present, should be addressed in your engagement letter. In extreme cases, you of course have the right to refuse to undertake a representation if you feel that the client is unreasonable in his or her expectations.

Probably the most important thing any lawyer does with any client, whether in mediation or not, is to help the client to discern his or her goals, and to prioritize them.

Effective consulting counsel should first help clients to uncover their objectives through a discussion of the difference between their ‘needs’ and ‘wants.’ It’s often helpful to list with the client on a chart or board – I use a whiteboard -- every possible client goal or interest either of you can articulate, no matter how great or small, dear or unimportant.

Be sure to do lots of probing here to discover the real underlying needs, versus positions the client has developed to protect these interests. I do this by asking lots of ‘why’ questions. An example might be helpful here. The wife may tell me that she wants to keep the house. Seems simple enough -- you would tell me to write on the whiteboard that her goal is to keep the house. But I’m not satisfied with this, which I view as a position created to protect an underlying need. I would ask her why she wants to keep the house. Possible answers are to keep the kids in the same schools, to preserve overall stability, or to live in a home she knows she can afford (if this were the case). These are the underlying goals and interests. And unlike the position – keep the house – these interests can ordinarily be met in a variety of different ways. For example, if keeping the kids in the same schools is the underlying interest, then keeping the house is one way to accomplish this, but not the only way. A house down the block or across town might possibly accomplish the same end. So having uncovered her true interest, the wife can be a much more flexible negotiator, because she is less locked into an inflexible position, namely keeping the house – for which she may have to pay dearly to protect. If keeping the house costs her too much in the negotiations, she can now offer a different way for her to achieve the same goal, and which costs her less and may protect more. One note on this approach: this technique sometimes involves a good deal of probing, which some lawyers think is too ‘touchy-feely.’ To the contrary, I suggest that the example reveals that while it may involve ‘soft’ skills, it is actually a critical strategic step in helping clients to get more and part with less by staying flexible with regard to how their interests are met. And it is exactly what I would do with any client in an adversary representation before entering the negotiating room.

Once you and your client have the underlying interests articulated and listed, you should keep moving them around in order of importance until you have the desired prioritization. So now you should have separated out the things the client really needs – can’t live without, the dealbreakers -- from the things s/he would like to accomplish if possible.[6] Effective consulting counsel should then help the client to develop proposals that protect as many if not all needs, sacrificing some wants -- but only if necessary to preserve the needs. As the negotiations move along, you will likely find the need to meet again to reorder goals, subtract some, add new ones or to adjust strategy.

Some say that negotiation is about changing minds, and to do so effectively, the skillful negotiator must know not only his or her mind, but that of the other party. Given this, it is equally important to address with the client his or her spouse’s underlying goals, needs and wants – in essence, to do the same exercise outlined above, but with respect to the spouse. This global or macro view of the case (described above under “Support the Mediation and Take a Global View of the Case”) will enable your client to develop solutions that meet his or her interests first, but are also acceptable to the other party, and will result in more durable agreements requiring less post-divorce intervention.

Mediation clients especially appreciate this approach, as it dispenses with much of the positioning and jockeying that they have chosen mediation to avoid in the first place. I also find that clients who use this approach usually get better deals for themselves, since it allows them to frame agreements with which the other party can agree, but in a way which better meets their own needs and wants.

Should your client’s goals be less than the law might allow, you should deliver this information to your client, but without making the client feel as if he or she is about to make an unbelievably fatal mistake. Your job is to make sure that your client is operating with full information. On this point it is important to note that the adversary system usually values one form of compensation above all others – money. And since most attorneys in the United States are trained primarily to use the adversary system, they tend to share this view. However, you should be aware that your consulting client might have something different in mind. Non-monetary or psychological compensation may be just as important to him or her as is money, especially given the emotionally charged nature of divorce. And this might have been part of the reason to use mediation, which many believe is a forum in which this type of value is more easily realized and delivered. For example, receiving an apology or getting a peaceful outcome may outweigh negotiating down to the last dime. The reverse may be true, too – getting revenge may be more important that striking a fair deal. The key is to understand that non-monetary compensation may be important to your consulting client, and you should look out for this. I often ask my consulting clients whether there is anything in addition to money that they want out of the negotiation. This is not to say that a client should entirely capitulate on financial issues just to create a peaceful outcome. Rather, the non-monetary compensation may be part of your consulting client’s calculus, and you should be aware of it.

A final point -- remember that in strategizing about the negotiation, the key is to avoid encouraging gamesmanship. Your client has come to you for help in resolving the issues, not to ratchet up the conflict. Your role is to help your client reach a fair and reasonable settlement with as little expense and damage to the family as possible. If you achieve this goal, your client will be grateful and refer other clients to you.

Consulting counsel should play a major role in helping the client to have full information concerning three items, in time order: (a) the process of mediation itself, (b) the suitability of mediation for his or her case, and (c) the underlying law. I take each in order.

(a) Mediation is a flexible, adaptable process. This feature distinguishes mediation from most other forms of dispute resolution; it can be molded to meet the specific needs of each situation. But this versatility also means that no two people in a given situation – including the mediator, the client or consulting counsel -- will likely share the exact notion of how mediation will be used in that instance. While many mediators will educate the client about the process itself and how they usually practice mediation, consulting counsel should take an active role in helping the client to understand some of the key variables, and to be sure that the client, the mediator and the other party agree on the process before beginning. Probably most important, clients should discuss with the mediator and the other party whether the mediator will follow a facilitative model – acting solely as intermediary without commenting on the substance of proposals – or take a more evaluative role, by helping clients to understand whether their proposals fall within legal and community norms.[7] Additionally, all concerned parties should be in basic agreement regarding whether mediation is to be used to settle all or selected issues, such as custody, alimony or asset distribution, and whether the mediator will ordinarily meet with both clients together in joint meetings, or with each separately in a “shuttle diplomacy” format; this can greatly influence the quality and content of the negotiations. Finally, there should be a basic understanding concerning expectations for consulting counsel -- specifically, whether they will work primarily from the outside, or be expected to attend some or all mediation meetings.

(b) While mediation is ordinarily useful in developing fair and durable settlements in the majority of cases, it is thought to be an inappropriate settlement model in certain situations. For instance, clients who have been victims of domestic violence ordinarily should not participate in mediation when this would impair their ability to advocate for themselves, and especially when the mediation will consist primarily of joint meetings. Also, some clients who are so unassertive that they can’t formulate their needs at all, or convincingly articulate their point of view, should probably avoid choosing mediation. What is important to note here is that once the process is buttoned down, consulting counsel should help mediation clients to understand what will be expected of them and then to help in determining whether mediation as articulated will be the most suitable process.

(c) Once the mediation has begun, and after having helped the client to outline and prioritize his or her goals and needs, consulting counsel must educate the client concerning the underlying law. Here, your job is similar to full-service legal representation: identify the legal issues, advise your client as to the current state of the law, and help the client formulate a point of view. In making your client’s legal rights clear, be sure to explain gray areas – of which there are usually many -- as well as the chances for prevailing. Be sure to be pragmatic. It is my experience that mediation clients want realistic estimations of their position. Overstating their case will likely cause them embarrassment or frustration during the mediation, as well as disappointment with your judgment. And ultimately, your client will appreciate your honesty.

This is a very important step. Clients who have the benefit of this expertise and are armed with realistic expectations are much better able to raise, talk about, and decide issues, making them much more effective in the mediation. Some family lawyers compose for their clients a brief memorandum or outline of the legal issues, relevant legal information, strategy and possible outcomes. In some cases these letters can be very useful in mediation when shared with an unrepresented spouse or the mediator, especially when s/he is not an attorney. Naturally, you do not share strategy.

I cannot over-emphasize how important it is for consulting counsel to be a reality tester for the client. As every family lawyer knows, many outsiders whisper things into divorcing clients’ ears, such as what they’re absolutely entitled to or what absolutely happens in court. More often than not, this ‘street talk’ is more hindrance than help, both to client and professional. When a client presents clearly erroneous street talk in mediation I often refer them to consulting counsel, who can help them to understand what really happens. This is because clients who have extremely out-of-line understandings of the probable legal outcome can pose substantial hurdles to the completion of an agreement. And in my experience this information is most effectively delivered by counsel. This is because when clients hear a more balanced picture from their own counsel -- who presumably has only their best interests at heart – they are better able to believe it, which goes a long way toward neutralizing the interference and realigning their expectations.

Both parties, as well as the mediator, need useful information to have meaningful discussions. And clearly, your client will need sufficient financial information in order to make proper decisions concerning support and division of property. Consulting counsel should be certain that the each client knows what documentation is adequate to get a full understanding of the family finances in each situation -- and that no financial decisions should be finalized until the necessary information has been received and digested. Consulting counsel should help the client put together the list of documents needed, such as pay stubs, tax returns and bank statements, and then carefully review the financial information with the client.

Remember that each case is different; and what will suffice in one case may not be enough information in another. The key is to gauge for the client when there is enough information, without turning over every stone if this does not add sufficient value. This may differ somewhat from the average litigation model, where broad interrogatories are served and then argued over. It is my experience that mediation clients have often chosen mediation to dispense with unnecessary discovery – specifically the kind that adds little value in decision making.

Sometimes your client may be reluctant to produce the necessary information. For example, some clients think that by not disclosing an item they can ‘keep it off the table,’ beyond discussion in the settlement. I suggest to clients that they’re far better off providing full disclosure and then making the arguments for why they should keep the item in question. This is so for at least two reasons.

First I usually explain that in the end, in my state (and in many others; check your state’s regulations) true, correct and complete financial information must be produced and disclosed to the court on a financial affidavit, which is a sworn statement to the court concerning assets, liabilities, income and expenses. This is the rule in all divorces, mediated or not. I also throw in that lying materially on a financial affidavit is an extremely dangerous thing to do that could become grounds for reopening the case years later. So if your state has a similar practice, this will ordinarily end the discussion with most clients.

Second, I help the client to understand that he or she can buy lots of goodwill in the mediation by making early and full disclosure, because this demonstrates a concrete commitment to playing fairly. And that the refusal to disclose information or dribbling it out extremely slowly will only make the other party even more suspicious and twice as determined to get at the information. In extreme cases, it could undermine the integrity and viability of the mediation.

Most lawyers are used to requiring substantial retainers at the beginning of a case, and drawing these funds down as the case proceeds. By contrast, many mediators work on a pay-as-you-go basis, presenting the bill at the end of each mediation meeting and requiring settlement at the same time. And since much of the mediation charges are for face-to-face problem solving time, many mediators make it a habit to alert clients to times when they will perform substantial out of meeting work for which they will be charged. Clients seem to like this approach, as is spreads out the cost, avoids unforeseen charges, and seems to provide them with a sense of control over the cost of the case. The mediators I know have extremely few uncollected bills.

Clients choosing mediation may request a similar billing format from consulting counsel, and you should be prepared to respond. The key here is in gauging the case as best as possible and in meeting the client’s needs. When a client wants a very limited representation, a pay-as-you-go format may be fine, whereas a more complete representation might require a traditional retainer-style approach. Be careful in gauging the case, as clients can be quickly turned off when, in a fairly limited engagements, consulting counsel asks for an unduly high retainer. This suggests that you probably do not understand the client’s needs and may make more of the case than the client wants. Your consulting counsel engagement agreement, which defines what you will and will not do for the client, might provide clues as to the appropriate fee structure in a given case.

In most states it isn’t necessary for consulting counsel to file a formal appearance with the court. And in states where parties must go to court in order to obtain a judgment of divorce, many mediation clients -- having developed a sense of empowerment and self-determination through mediation -- will prefer to appear before the court as pro se parties where this is feasible. However, should your client want you to represent him or her before the court, or just to file the necessary court papers in representational capacity, you will likely need to file an appearance. In this instance, it is probably a good idea to state on the record the more limited nature of your work, which makes the court aware of your limited role and can avoid potential problems later. If you do this, it is usually a good idea to go over this with your client in advance. And as always, filing an appearance has its potential downside; once in a case on the record, counsel may need the court’s permission to withdraw.

By giving clients more direct control of their settlement, mediation appears to give lawyers less control. This worries some attorneys who are used to the litigation model that puts them in the center of the case, knowing everything that occurs. However, what seems like less daily control is often more control over what really matters for both you and your client. In mediation you rarely find yourself frustrated by endless motions, nor in most cases do you end up submitting to a binding decision-maker who can never know the case as well as you and your client do. Rather, the consulting attorney has the freedom, with the client, to focus exclusively on the settlement – and one that is satisfactory on all points.

It is true that you will have to develop a means of being ‘kept in the loop’ in mediation cases, since it is the client -- and not counsel -- who is the hub of information and decision-making. Some lawyers I know of make sure to stay appraised of the mediation schedule, progress and agenda, and to chat with their mediation clients between each meeting, if just for a minute or two. Others leave it to the client to call them as needed. The key is to become flexible and do what works best for your client; your need to know everything may conflict with the client’s need for control and self-determination. However, you should be clear with your client about how much regular information you will need so that you can give relevant and effective advice when called upon.

Whether in mediation or not, lawyers and clients often disagree about whether a settlement is fair under the circumstances. Many attorneys worry that when acting as consulting counsel they might disagree with the client’s chosen course of action, and might have less influence over the client, and the outcome, than in the litigation model. So they avoid taking consulting counsel engagements. This concern should not by itself be a reason to avoid expanding your practice to include offering consulting counsel services. There are many ways to handle the situation in which you and your mediation client disagree about the settlement.

You can always send the client a letter stating that you approve of the agreement as to form only. This means that you are comfortable with the actual written form of the agreement, but reserve judgment substance of the specific settlement. In more egregious cases some attorneys send clients a letter of non-concurrence, which specifically lays out that consulting counsel’s concerns are so grave that he or she can not concur with the result. In one memorable consulting counsel engagement I struck a middle ground. First I discussed my substantial concerns over the settlement terms with my client. I then sent her a four-page letter reprising our conversation, which I asked her to sign. By doing so, I was relieved of my own liability concerns, and could better help the client achieve her goals on her terms, though this differed considerably from my advice.

One final course of action is, where permitted and appropriate, to file an appearance with the court and state on the record your concerns, as well as your understanding of the scope of the representation. Some attorneys will question their own client on the record as to these points, to be certain that counsel, the client and the court share the same understanding.

Family lawyers who work as consulting counsel in private mediation tell me how satisfying they find the work. Many report their relief from having to endure the endless grind and hassle of adversarial, contentious negotiations, not to mention the stress of courtroom battles. Others report their great gratification in seeing cases come to closure quickly, and for the most part peacefully, so they can move on to other responsibilities.

In my experience mediation clients are usually very satisfied with the process overall, including the work of consulting counsel. They like having reached settlement with increased control over the outcome and process, as well as with the civility and dignity that a more consensual approach fosters. So mediation clients pay their bills. And since they are usually actually with you for much of the billed time, clients will better understand the nature of your work, resulting in fewer disagreements over bills and fewer fees to write off.

You will likely make less money per case as consulting counsel than in a full-service model. But remember that it is not necessary for each case to be a large revenue producer in order to have a successful practice and make a good living. Satisfied clients spread the word and in the long run will form the foundation of a lucrative practice.

Finally, there is the opportunity to develop a long-term client. Many mediators such as I do not accept subsequent legal work of any nature – including estate work, real estate matters or business engagements -- from mediation clients.[8] This is because we believe that doing so might create the perception that the mediator favored a client during the mediation in order to secure a lucrative subsequent engagement. Even if untrue, this appearance of bias is enough for many of us to refuse to take on any succeeding legal work from any mediation client. This leaves the opportunity for consulting counsel to receive these engagements, from clients who are usually satisfied with the representation in the mediation.

You have asked me to provide you with individual advice in connection with your mediation conducted by John Jones, Esq. In contracting with me to provide this service, please understand the nature of my role.

My advice and answers to your questions will be based solely upon the information I receive from you. So, in our conversations I will advise you as to the legal significance of any proposed settlement you convey to me solely in conjunction with the facts as you convey them to me. Additionally, in reviewing any unsigned draft of your proposed agreement, I will answer your questions and advise you as to the legal significance of each provision solely as it appears from the written text of the agreement in conjunction with the facts as you convey them to me.

Often, it is customary for a lawyer who represents you, and only you, to negotiate the agreement for you, to investigate all facts, and even to compel production of facts related to your spouse’s circumstances under oath through discovery and court proceedings. However, by signing below, you are asking me to do without these additional steps in order to save time, professional fees and court costs, as well as to preserve a conciliatory family climate. This is acceptable to me as long as you understand that any advice I formulate without full factual information about your case could be entirely different from my advice if I were fully informed of all relevant facts.

I shall tell you what is legally advisable, but will ultimately be governed in this matter by your expressed desire that, in choosing mediation, you have consciously chosen to sacrifice or compromise the fullest advancement of your individual interests in favor of preserving a conciliatory family climate, pursuing other interests, and saving time, professional fees and court costs. My understanding is that for these reasons, you have not elected to seek the adversary lawyer representation that would require full investigation of all facts and the fullest advancement of your individual interests, and at all cost.

To begin our work, please provide a $[ ] deposit, for which I will provide a receipt, to be applied to your final bill. By signing below, you agree to compensate me for my services performed both in and out of meetings at the rate of $[ ] per hour, and for the full amount of time which is allotted in advance for each meeting. Payment for each meeting is due and payable in full at the earlier of our next meeting or when I next render an invoice. Should there be work to be conducted by me in between meetings, which in my estimation will be substantial, I may request an additional deposit before beginning such work. Should I raise the hourly rate charted to new clients, you agree that I can raise the rate charged you in accordance with such increase, and will of course give you advance warning of any increases.

Of course you may terminate our relationship at any time. If you do so, I will fully cooperate with your in transferring your files to you or another law firm you designate to me in writing; provided you have paid all outstanding invoices in full. Otherwise, I reserve the right to impost a lien on your files until we work out a mutually satisfactory payment arrangement.

In order to be fair to all my clients, except in legitimate emergencies or weather-related circumstances, I must charge you for scheduled meeting for which you give me less than [ ] business days’ notice of cancellation.

In addition to compensation for consulting services, I will bill you for time spent outside our actual meetings to conduct research, develop information, and the like on your behalf, as well as on the telephone, at the rate per hour stated above, and payment for such services will be due in full at the next meeting or when I next render an invoice.

If you have any questions concerning this agreement, please ask them of me before you sign it. If you have none and if the above coincides with your understanding of our relationship and you agree that I shall not undertake a full adversarial inquiry into your proposed separation agreement, please sign this letter in the space provided below.

[1] Michael Becker is an attorney, accountant and law school professor with a full-time mediation practice in Westport, Connecticut. He is the author of numerous articles on mediation directed at both practitioners and the public. Michael is a founding Director and past-President of The Connecticut Council for Divorce Mediation and Collaborative Practice, and is an Academy of Family Mediators Practitioner Member. He is Adjunct Professor of Law at University of Connecticut School of Law, where he co-teaches a clinical course in mediation, and at Quinnipiac University School of Law, where he teaches lawyer negotiation. Michael can be reached at One Kings Highway North, Westport, Connecticut 06880; e-mail mediate@snet.net.

[2] Whether to caucus or not, and if so, when, is a disputed norm in mediation circles. There is no right answer, and some mediators caucus more often than others. In the extreme, there are some mediators who never caucus, and others who use caucusing as their primary method of practice, conducting what is sometimes referred to as “shuttle diplomacy.” There has been much written on the usefulness and ethical issues surrounding caucuses, which is beyond the scope of this article. For purposes of this article, I will assume that most meetings are held in joint session with occasional caucuses, which is the norm in my area.

[3] In most areas of which I am aware when the mediator is an attorney, he or she is permitted to draft the settlement agreement. Please note that this is also a disputed norm.

[4] These actions are broadly defined by some as giving “evaluation.” Different jurisdictions permit attorney and non-attorney mediators to engage in evaluation to a greater or lesser degree. In most jurisdictions there is no clear rule, while others are currently considering the question. This having been said, it is thought by many to be more important for consulting counsel to provide evaluation when the mediator is not an attorney and may be less familiar with these technical points.

[5] See below under “Educate the Client” for a discussion of discussing the suitability of mediation in certain situations.

[6] While I would like to take credit for inventing this approach, I cannot. This technique is derived from the interest-based approach so well outlined in the now-classic book, Getting to Yes (Fisher, R. and Ury, W., 1981).

[7] Other mediator styles worth investigating, but which are beyond the scope of this article, are whether then mediator is ‘”transformative” or “problem-solving” in overall approach, and whether s/he defines problems “broadly” or “narrowly.”

[8] In some states mediators may be prohibited from doing so anyway. Check your local rules.