Your attorney’s involvement in your mediation and how you can/should influence it is a highly complex issue. This is especially true in New York and New Jersey, where many matrimonial attorneys are ignorant of — or even prejudiced against — mediation. If you wish to make a reasonable attempt to settle your case through mediation, you should retain an attorney who is sophisticated and experienced concerning mediation and has the same level of commitment to the process as you do. Your mediator may be able to assist you in locating such an attorney.
Divorce mediation encourages the parties to exercise maximum control over both the process and ultimate issues. It’s generally conducted without the attorneys present, and there’s little or no direct contact between attorneys and the mediator. Attorneys are rarely present during mediation sessions except to deal with problems such as extreme power imbalances or technical complexity (e.g., assets that are difficult to value). I encourage clients to consult with attorneys between mediation sessions concerning such issues as: their alternatives (i.e., likely trial outcomes); what discovery is necessary; and the client’s goals and mediation strategy. Although you should seek your attorney’s advice, you should always be the ultimate decision maker.
An important way to help your attorney is to make it clear that you understand the uncertainties of litigation. Family law trials outcomes are not very predictable in most jurisdictions because of the great latitude in resolving such issues. This principle, known as “judicial discretion,” often leaves a realistic attorney able to give a client only broad parameters on hypothetical outcomes to help the client make informed settlement decisions.
The best way to help your attorney serve your needs — whether in mediation or the adversarial process — is to demand sober, realistic legal advice. If you decide that the “other side” is recalcitrant and the matter can’t reasonably be settled, let your attorney aim for the stars at trial, even if getting all you’re after is highly unlikely. But until then, in mediation and settlement conferences, make your decisions concerning what constitutes a reasonable settlement based on a realistic appraisal of your alternatives.
Douglas Schoenberg is an accredited divorce mediator (NJPAM), attorney, practitioner member of the Academy of Family Mediators in Summit, NJ.