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Information clients should have regarding mediation

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I’m talking with someone at a networking event, and he asks about the work I do. “I’m a mediator,” I say. “I help people — often people who are getting divorced — resolve their conflicts without going to court.” He responds, “I wish I had known about you when I was going through my divorce. It was horrible.”

How many times has someone said this to me? Many times.

I’ll often ask, “Did you have a lawyer for your divorce?” Almost everyone answers “yes.”

“Did your lawyer tell you about mediation?” Almost always, the answer is “no.”

Some mediation clients tell a similar story. They started with a divorce lawyer, didn’t like where it was going, and then learned about mediation, but not from the lawyer. The attorney didn’t say anything about the process.

Mediator colleagues have told me of similar experiences. The stories are anecdotal, but I believe that they are indicative of a widespread problem; namely, that when potential clients consult with lawyers, the lawyers fail to provide them with information that they might find important and helpful.

I want to acknowledge the lawyers who do share such information, and I think that there are more than a few matrimonial attorneys who tell a potential client about mediation, even at the risk of “losing” (not being retained) by that person.

Should all divorce lawyers tell those coming to them something about mediation, when doing so might cost them business?

David Saxe apparently thinks so. Saxe, an associate justice at the Appellate Division, wrote an article for the New York Law Journal (read primarily by lawyers) in 2011, entitled “Encourage Divorce Clients to Mediate”. In it, he pointed out that the litigation process often extended into years, exacerbating conflicts instead of resolving them amicably, and that legal fees can often be enormous, sometimes well into the six figures, for the more contentious cases.

Saxe wrote that mediation was “more focused on the needs of the parties [than litigation],” and that in mediation “the majority of the expended time is devoted to exploring disputes, proposals, suggestions and possible solutions.”

Are many more matrimonial attorneys informing (let alone ‘encouraging’) those who come into their offices about mediation since the Saxe article was published? Who are giving a brief overview of how it works and saying that the process might save time and money? That spouses who mediate reach their own agreements on how to spend time with their children, how to divide property, and on all their other questions? I doubt it.

Informed decision-making is at the very heart of mediation. That is, parties in mediation are required to gather and share information so that they can make the important decisions that they need to.

Imagine a wife saying in regard to her husband, “I don’t need to know anything. What’s his is his and I don’t care.” Imagine that same wife learning that her husband is holding a winning lottery ticket worth $5 million, and that she may be entitled to a share of the proceeds. Might this hypothetical wife make a different decision, knowing about the lottery ticket and its value, than she would if she were ignorant of it?

While the example seems far-fetched, I think that the point is clear. Having information may impact our choices.

According to Section B of Rule 1.4 of the New York Rules of Professional Conduct) entitled “Communicat­ion,” a lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representa­tion.”

Is it ‘reasonably necessary’ for a divorce lawyer to tell a potential client that there is another way to get a divorce without litigating in court? I think so — if that client is to know enough to make an informed decision regarding the representation.

New York City and Long Island-based divorce mediator and collaborative divorce lawyer Lee Chabin helps clients end their relationships respectfully and without going to court. Contact him at lee_chabin@lc-mediate.com, (718) 229–6149, or go to lc-mediate.com/. Follow him on Facebook at www.facebook.com/lchabin.

Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice.

Updated 4:38 pm, December 9, 2016
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