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The Collaborative Family Law The Collaborative Family Law Process 101: Process 101: A New Role for A New Role for the Family Law Attorneythe Family Law Attorney

By: Dawn Anderson

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Introduction 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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AgendaAgenda

Mediation.Fears and benefits.Styles of mediation.The mediator.The role of the family attorney in

mediation.

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MEDIATIONMEDIATION

“[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 MediationFears About Mediation 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 MediationBenefits of MediationSaves time and moneyAllows for win-win situationAllows for creativity in solutionsAllows for healingGives the client the opportunity to be heardClient learns how to handle conflictLess harmful to the family unitAllows for continued relationship

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Styles of MediationStyles of MediationEvaluative

– Mediator evaluates the case– May make recommendations

Transformative– Reflection/Summarize– Not agreement focused

Facilitative– Widely used/accepted– 3rd party neutral

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The Role of the Family Attorney The Role of the Family Attorney in Mediationin Mediation

CounselorNegotiatorEvaluator

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The Lawyers Role As CounselorThe Lawyers Role As Counselor

Gatekeeper to the processWhen to use the processSelects the mediatorSetting the dateLocation Who will attendPrepare case file

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1. When to Use the Process1. When to Use the ProcessSeveral Factors to Consider: 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 Mediator2. Selects the Mediator

TrainingSubject matter experienceReputationStyleClient comfort level

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3. Setting the Date and Time3. Setting the Date and Time

Date: – Anytime– Before, during or after case

Time:– Traffic– Parking– Child care

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4. Location4. Location

Neutral locationComfort levelUnbiased perception

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5. Who Will Attend5. Who Will Attend

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 File6. Prepare the Case File

Check factsCheck lawRe-check deadlinesSummary to mediatorVisual aidsLearn more about the processReview agreement to mediate

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The Lawyer As the NegotiatorThe 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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1.1. Prepare the ClientPrepare the Client

Explain the process in lay termsExplain the mediators roleExplain ‘good faith’ and confidentialityBenefits and risksCompare to litigation

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2. Coach the Client2. Coach the Client

Interests v NeedsClear goalsTalking pointsAvoid additional harmFocus on issue not people

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3. Advise and Develop Options3. Advise and Develop Options

BrainstormBATNAWATNAExpand the pieLegal perspective

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4. Communication in the 4. Communication in the MediationMediationHow to communicate with lawyer duringNote-takingEmotionsPeople skills

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The Lawyer As the EvaluatorThe Lawyer As the Evaluator

Review agreementsMemorialize the agreement

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1.1. Review AgreementsReview Agreements

Scrutinize for practicality Check the clients comfort zone Ensure fairness Re-negotiate any unraveled issues

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2. Memorialize the Agreement2. Memorialize the Agreement

Draft a consent order Submit to the court

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Where to Get More InformationWhere to Get More Information

Mediation classes at UBMICPEL classesWebsitesFLA

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SummarySummary

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.