I received a call from a man interested in mediation. Ultimately, his wife did not want to pursue it, and since mediation requires that both spouses agree to the process, we never met for a session. That’s as it should be. Mediation is a voluntary process. The parties have freedom to reach their own agreements — or not to agree, and not even to attend a first session.
The man, who also has kids, called me sometime later. He thanked me for informing him about how mediation works, even though he was unable to participate himself. He said he liked mediation’s forward-looking approach that encourages parties to examine and understand their current situations, and to consider their respective needs (and their children’s). With that foundation, spouses are helped to develop options to meet those needs, which often include money and a place to live, returning to school, or changing careers.
The past is not ignored in mediation, but it is de-emphasized. Unlike the courts, which weigh and assess blame for past actions, mediators help the parties to deal with the here and now, and with how to plan for and create the most positive future for each family member.
The man shared with me that he had hired an attorney, as his wife had done earlier. Further, he said that he liked my approach (really the approach of many mediators) much better than his lawyer’s. His lawyer was being antagonistic towards his spouse and looking for what his client could get, seemingly without any regard for the effects his aggressive tactics might have on the future parenting relationship and the impact on the children — which were very much at the forefront of the client’s mind.
The client seemed to believe that his divorce case would have a better outcome, for his wife and children as well as for himself, if his lawyer were open to working cooperatively with opposing counsel (while of course safeguarding his client’s rights) rather than behaving like a steamroller.
Yet, the man was apparently reluctant to openly question his attorney — and this reluctance, to my mind, is a great problem that many clients have.
I did not advise the caller, and do not know who was representing him. But I did share the thought that, “your attorney works for you.”
In mediation, the lawyers are acknowledged to be experts — in the law, that is. But they are not the experts when it comes to their clients’ lives. The clients themselves are the experts in that realm.
Think about it — who knows better about your wants and needs, you or your lawyer? Who knows your children better, you and your spouse, or your attorney who has probably never met your kids?
Your legal eagle can help you get where you want to go, but shouldn’t you be the pilot, or perhaps more appropriately, the co-pilot in your own case?
It is not uncommon (but it is most unfortunate), that clients allow or even look to their lawyers to make all of the important decisions about the clients’ lives. Whereas, in my view, the more preferable relationship for both client and attorney is a partnership between them, where clients can easily ask questions, and their expertise in their own lives is fully respected.
Your lawyer is there to advise and advocate for you, and you should carefully consider everything he has to say. But you are the one writing the check, and ultimately many decisions come down to you, including whether the attorney you have interviewed or hired is the right one for you.
New York City- and Long Island-based family and divorce mediator and collaborative divorce lawyer Lee Chabin, Esq., helps clients resolve their disputes respectfully and without going to court. He is also the director of Training and Court Program Development at Community Mediation Services, Inc. in Queens. Contact him at firstname.lastname@example.org or (718) 229–6149, or go to lc-mediate.com/. Like him on Facebook.
Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice.