Wednesday, April 15, 2021

Mediators and Collaborative Lawyers Working Together

How Collaborative Lawyers Can Work with Mediators [Book Excerpt]

During the course of a collaborative law case, all participants need to roll up their sleeves and share information, clarify and communicate goals and priorities, brainstorm possible resolutions, devise and evaluate proposals, and—finally—reach agreements. Sometimes it is necessary for the collaborative lawyer to work with a mediator. Here are some tips for how they can work together.

Collaborative Law: Achieving Effective Resolution in Divorce without Litigation, Second Edition

Excerpted from Collaborative Law: Achieving Effective Resolution in Divorce without Litigation, Second Edition
By Pauline H. Tesler

Table of Contents PDF | Introduction PDF | Learn more about the book »

Collaborative lawyers make great consulting lawyers in cases where mediation is the clients' choice of primary conflict-resolution mode. The collaborative participation agreement is modified to reflect this role change, and the collaborative lawyers remain barred from participating in litigation.

Collaborative lawyers can strengthen and enrich the mediation process itself. In mediations where the clients' consulting lawyers are in the room participating, mediators who develop good working relationships with collaborative lawyers can enjoy the advantages of having two other professionals in the room who know about interest-based conflict resolution, whose legal advice will be built into the negotiation process, and who are skilled at out-of-the-box problem solving.

If a collaborative case runs into problems, a "meta-mediator" can help everyone get through the challenging phase. Sometimes a "perfect storm" of challenging clients and challenging issues can stall a collaborative negotiation. If a mediator who understands the collaborative process is brought in to hold responsibility for managing the negotiating session, the lawyers can be free to work more intensively with their respective clients. And, a third conflict-resolution professional in the room can sometimes help undo logjams in creative problem solving.

Where new mates or extended family are undermining the collaborative process behind the scenes, a mediator can help return the process to integrity and transparency. A mediator can work with the outside family members and help them or the client bring any legitimate interest involving them to the collaborative table for constructive discussion.

If the collaborative lawyers run into difficulties with one another, a mediator can help. A mediator who understands the collaborative process can be an effective facilitator or mentor who can help the two professionals communicate about what is going wrong, and help them get back into a more helpful mode with the clients.

[ABA Blog excerpt created by Kurt Harzke] |