Mediation, Collegiality, and Professionalism

I continue to utilize Dragon Naturally Speaking by Nuance but recently could not resist recently asking Nuance’s sales representative why Dragon cannot learn to spell its name or the name of its publisher.

The subjects of “mediation” and “collegiality” are a recurring theme on my website. To me, they go hand-in-hand. The most competent and professional attorneys seek first to ascertain whether there is a middle ground or resolution open to the contesting parties. Sometimes, the communication is so bad that the parties don’t even realize they are in substantial agreement as to the outcome of the case. Attorneys with limited experience and imagination seem only able to reflect their clients’ weaknesses. Therefore, an attorney with an abusive client acts abusive, and an attorney with an addicted client may cover up and make excuses for his client. Many times the mediocre attorney fights for her “clien’ts rights” without ascertaining that client’s desires, needs and values. Or, if the client’s values are mediocre, the mediocre lawyer does nothing to try to improve that client, so they both remain mediocre.At the very least, there are two very different forms of mediation.

1. The first to arrive on scene was “civil mediation” which showed up in the federal district courts. As it has evolved, no competent attorney will allow their personal-injury client, with $50,000 of medical bills and an equal sum in lost wages, to be “eaten alive” at mediation by an experienced insurance representative or attorney. As a result, civil litigators who try cases involving personal injury, claims against insurance companies, premises liability cases, and even “will disputes” and boundary line and right-of-way disputes, expect to attend mediation and prepare accordingly. While these cases often involve strong emotion, the attorneys are generally adept at avoiding personal attacks and recrimination. In other words, attorneys defending such actions are not “personally offended” that the action was brought, and plaintiffs’ lawyers are usually fervently hoping the matter can resolve without a full trial. The don’t have time for “pissing around”.

   b.The other form of mediation is “family law mediation”. Sadly, the origins of family law mediation in West Virginia have led to a tragic flaw in family law mediation as it is practiced in most parts of the State of West Virginia. Only where strong judges require mediation and foster the concept that lawyers go with their clients to mediation, is, in my opinion, mediation really effective. I admit I do not have statistics to back this up, but, strangely, I am aware of absolutely no effort to maintain statistics on whether or not mediation is successful. Also, from my experience, when there are two competent attorneys and two fit parents free of severe alcohol or drug addiction, or a history of domestic violence, mediation in the jurisdictions where I practice is successful nearly 90% of the time. Cases involving the former are, of course, always problematical. Simply, alcoholics, drug addicts, and people with uncontrollable tempers, simply cannot keep their word.

The “origin of family court mediation” that I refer to above was a small budget “pilot project” which began in the Eastern Panhandle of West Virginia and which began with the premise that you can mediate “only children’s issues”, use “non-lawyers” to keep down the costs, keep the participants ignorant of the tremendous ramifications of “technicalities like agreeing or not agreeing to a few additional “overnight stays”, and that the lawyer can stay in her office and send the vulnerable client down to negotiate her or his own divorce. (By the way, that minor technicality can make the difference about which parent gets the children if the other moves from the state!)

As a result of a party’s not having an attorney, I have seen self represented parties forced to pay off the $20,000 loan on their former spouse’s Ford Crown Victoria, lose their share of the former family residence, after the children turned 18, lose their rights to a 50% share of their spouse’s retirement funds, give up well deserved spousal support, or pay double the child support they anticipated, because they did not know to negotiate for “three more overnight stays” per year. I have watched videos of mediators proudly tricking people into agreements by declining to educate them on the law and allowing them to give away valuable legal rights. I have seen well-intentioned non-lawyer mediators (by profession, counselors, school teachers, or homemakers) who were thoroughly intimidated when lawyers accompanied their clients to mediation. I have also heard them bitterly complain about the presence of lawyers at mediation, largely before because the lawyers who were appearing during the first few years had not bothered to educate themselves on mediation and did not come to mediation with a constructive attitude.

On the issue of “collegiality”, just this week I received another letter from a colleague accusing me of lying. I was not lying and that accusation offended me. And, I certainly will not hesitate to complain about bad behavior such as a failure to pay child support, a failure to return my calls, or a failure to make proper financial disclosure. But I try not to attack the other attorney personally. I try to speak candidly with that attorney, and, where possible, I even acknowledge weaknesses in my client, or my oversights, so that I can assure the other side we are working on those weaknesses and correcting my oversights. In my opinion, the worst thing an attorney can do is deny to himself his client’s addiction or abusive behavior. Only by getting an accurate picture of that client, can the attorney encourage the client to improve and get appropriate help. It is very difficult to rear children together when the parents stay together and have mutual love and respect. It is virtually impossible when the parties detest or lack respect for one another or try to control one another instead of putting their children first. Jealousy, and hatred, and feuding families, get in the way of “putting the child first”.

I believe that everyone who goes through a divorce should read carefully books such as “Children in the Middle” by Garrity, or Dr. Laura’s “The top 10 Stupid Things Women (Or Men) Do To Mess Up Their Lives”. In fact, my next post will be some of the “do’s and don’ts” for people going through a divorce or custody fight.

This post was written by Burton Hunter

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