Victoria Smith and I have identified our ‘top ten’ ways to provide advocacy and stay true to the ‘no matter what’ principles of Collaborative Practice:
At the one end of the spectrum is a relatively low level of advocacy which we may call Facilitative Advocacy. At this end of the spectrum the clients can speak for themselves, the lawyers facilitate and provide information, the lawyer/client relationship is relatively detached and there is a greater focus on interests as opposed to the law.
At the other end of the spectrum is a relatively high level of advocacy which we may call Partisan Advocacy. At this end of the spectrum, lawyers may often speak for the client and provide opinions, recommendations and advice. The lawyers advocate for adaptations to the process, including more individual work with clients and negotiations away from the table. The lawyer/ client relationship has a high level of intensity or intimacy and the negotiations are often more legally based.
It is important to assess the advocacy needs of our client so that we can provide flexible, customized advocacy to each and every client. As long as we remain true to the essential qualities of collaborative practice, we can help our clients achieve their goals even in some of our most challenging files.
Involving counsel during the mediation process is a strategy that should be considered and evaluated throughout the mediation process. Counsel can be involved in a mediation through individual sessions with their client before, during or after the mediation process, through conference calls or meetings with the mediator and by attending mediation sessions.
If independent legal advice is delivered through balanced settlement-minded legal information it is always helpful no matter when it is offered. My experience has been that collaboratively trained counsel are particularly adept at offering helpful settlement advocacy. On the other hand if the independent legal advice involves premature positional and aggressive legal posturing then that is always a hindrance no matter when it is offered.
I always want my clients (mediation or otherwise) to be fully informed about the finances and the legal model before making decisions. This avoids the counter-productive result of back-tracking or ‘reneging’ on early tentative agreements. When someone changes his mind about an issue after he learns what the law says about it, the other spouse always feels that there is bad faith negotiating.
As a lawyer / mediator, I provide legal information in all of my mediations. I go over family law principles with respect to the equalization of net family property and give information with respect to deductions and exclusions. I provide information about the Child Support Guidelines and the Spousal Support Advisory Guidelines. Once we have achieved some level of consensus about the inputs, I will run CSG and SSAG calculations and bring them into the mediation session. I will also prepare preliminary draft Net Family Property Statements. My goal is that neither client is ever surprised by the information they receive from their ILA counsel.
The opposite problem of early positional legal opinions is last minute ‘after the fact’ independent legal advice. When I am the one providing independent legal advice, I never like meeting a client for the first time when the deal is basically ‘fait accompli’ and I am expected to simply ‘rubber-stamp’ it.
While I don’t insist on counsel being retained prior to the first mediation session, I do encourage clients to retain a lawyer relatively early on in the mediation. This allows the lawyer to be informed and available for assistance between sessions if needed and then by the time the lawyer is giving ILA on the final deal reached, they already have a connection and knowledge of the client.
Involving counsel throughout a mediation is helpful when counsel are supportive of the process and provide balanced legal opinions. They can provide effective settlement advocacy, which the mediator can work with to help clients resolve difficult problems or solve complex legal issues.
I was teaching Advanced Parenting Mediation recently with Christine Kim. We had participants from all three disciplines (mental health, law and financial) and it was a skilled group of well-trained mediators.
As I was preparing to teach in the days leading up to the workshop and as I was coaching the role-plays during the workshop, it struck me just how hard mediation is. The mediator works hard . . . while at the same time trying not to work harder than the clients. There is a lot going on in a family mediation. The mediator has to maintain neutrality and compassion for both clients, holding each throughout the entire mediation process. The mediator has to understand and present some legal model information. The mediator needs to be knowledgeable about ages and stages, grief theory, impact of separation on children, impact of conflict on children, cultural issues, domestic violence and power imbalances. The mediator needs to be fully present paying attention to the verbal and non-verbal information in the room. The mediator has to be quick and respond to verbal attacks as they happen. The mediator has to have some framework for understanding conflict and a toolbox of skills and interventions to apply to the conflict at hand. The mediator must be able to actively listen for hours on end and be adept at mirroring and re-framing. The mediator has to be knowledgeable and creative in the option development phase. The mediator has to balance between process needs and yet still stay focused on achieving the task at hand. And finally the mediator has to have good instincts and be present enough to notice them. These are just a few of the things we covered in our one-day workshop!
No wonder I am often tired after a day of mediation. Satisfied . . . but tired.
Mediation is hard work. It’s fulfilling and meaningful work, but that never makes it easy.
A shout-out to all the family dispute resolution mediators who are doing their part to bring peace to the world one separating family at a time.
When one or both parents seems caught in a pattern of criticizing or bad-mouthing the other parent, especially in front of the children, I ask if they would consider the 21 Day Anti-Negativity Challenge. For 21 days in a row, they must refrain from any negative comment about their spouse, whether in front of the children or not. Negativity can become addictive and the complete ban on it is a sort of de-tox. It takes 21 days to break or make a habit. I try to book the next session at around the time that the 21 days is up. If they are up for the challenge, I also ask them to do a 21 day Appreciation Journal where each night they must write one thing they appreciate about the other parent as a parent or co-parent. They may keep this journal private, although I ask them to share the journal with me at the end of 21 days and invite them to each share 3 ‘appreciations’ from their journals. I have seen this work wonders to turn a negative pattern around in otherwise mature and responsible parents.
Instead of telling our clients what to do, we need to ask our clients what information they need to make a good decision.
We can ask questions such as: