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

The Collaborative Family Law Process 101: A New Role for the Family Law Attorney. By: Dawn Anderson. 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. Agenda. Mediation.

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

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  1. The Collaborative Family Law Process 101: A New Role for the Family Law Attorney By: Dawn Anderson

  2. 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.

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

  4. MEDIATION • “[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

  5. Fears 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!

  6. 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

  7. Styles of Mediation • Evaluative • Mediator evaluates the case • May make recommendations • Transformative • Reflection/Summarize • Not agreement focused • Facilitative • Widely used/accepted • 3rd party neutral

  8. The Role of the Family Attorney in Mediation • Counselor • Negotiator • Evaluator

  9. 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

  10. 1. When to Use the Process Several 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?

  11. 2. Selects the Mediator • Training • Subject matter experience • Reputation • Style • Client comfort level

  12. 3. Setting the Date and Time • Date: • Anytime • Before, during or after case • Time: • Traffic • Parking • Child care

  13. 4. Location • Neutral location • Comfort level • Unbiased perception

  14. 5. Who Will Attend • Lawyer? • Not generally in court referred domestic • Private sessions – up to parties Comfort person? • New partner? • Comfort person? • Child? • Expert?

  15. 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

  16. 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.

  17. Prepare the Client • Explain the process in lay terms • Explain the mediators role • Explain ‘good faith’ and confidentiality • Benefits and risks • Compare to litigation

  18. 2. Coach the Client • Interests v Needs • Clear goals • Talking points • Avoid additional harm • Focus on issue not people

  19. 3. Advise and Develop Options • Brainstorm • BATNA • WATNA • Expand the pie • Legal perspective

  20. 4. Communication in the Mediation • How to communicate with lawyer during • Note-taking • Emotions • People skills

  21. The Lawyer As the Evaluator • Review agreements • Memorialize the agreement

  22. Review Agreements • Scrutinize for practicality • Check the clients comfort zone • Ensure fairness • Re-negotiate any unraveled issues

  23. 2. Memorialize the Agreement • Draft a consent order • Submit to the court

  24. Where to Get More Information • Mediation classes at UB • MICPEL classes • Websites • FLA

  25. 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.

  26. 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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