Can My Spouse and I Use a Mediator Instead of Lawyers In Our Divorce?

Mediation - dispute resolution process.

Many people ask if they can use a mediator instead of lawyers in a divorce.  Recent changes by the Wisconsin Supreme Court, redefining the role of a mediator in a divorce action, have caused many people to ask this very question.  In order to determine what is right for you, an understanding of the difference between Lawyer-Mediator and Advocate Attorney is needed.

Typically, a mediator’s role has been to help parties find solutions to disputes from a neutral, third party perspective. Mediation is confidential and scheduled outside of court, so it aims to promote open, honest and unreserved discussion between the parties. Mediators can benefit parties in a divorce by helping suggest constructive alternatives to the positions of each of the parties and to help to find a reasonable solution based on the presentation by both parties. Mediators will sometimes prepare a short and neutral-toned memorandum of the agreement between the parties if agreements are reached. Then, the parties are responsible for ensuring that an agreement is drafted and submitted to the court so that it becomes an order of the court.

Recently, however, the Wisconsin Supreme Court has approved the expansion of the role of a lawyer serving as a mediator.  Specifically, “lawyer-mediators”, are now permitted to draft, modify or file documents confirming, memorializing, and/or implementing the parties’ mediated agreement.  In order to do so, the law requires that the lawyer-mediator maintain neutrality throughout the process and also have the written informed consent of the parties.

As this new rule is rolled out (effective date of July 1, 2017), it is important to understand that lawyer-mediators are not interchangeable with advocate counsel.

In fact, as part of the written “informed consent” that the lawyer-mediator must obtain the lawyer-mediator must inform the parties that it is important to seek independent legal advice before executing any documents prepared by the lawyer-mediator. This is done because the lawyer-mediator cannot assume an advocate role. Therefore, a mediator does not necessarily replace the need for an attorney to advocate for your interests.

By nature, mediators must be neutral.   Mediators are hired to help the parties reach an agreement and not advocate a certain theory or provide advice to the parties.  Therefore,  lawyer mediators may only perform these additional duties allowed under the new rule if it can be done without compromising his or her neutrality and so long as they do not assume an attorney-client relationship with either party.  This means that any document drafted by the lawyer-mediator would need to be a “neutral” document; that the lawyer-mediator shall not attempt to advance the interest of one party at the expense of the other party; and that the lawyer-mediator may not give legal advice to either or both parties while acting in that neutral capacity.

This can lead to issues however, because often times one or both parties do not understand all of the consequences of their decisions. An attorney acting as neutral mediator may attempt to explain these consequences to the parties in mediation but only if they can do so without giving legal advice, without acting as counsel for either party and without compromising his/her neutrality. Practically speaking, this is a very difficult task when many issues impact the parties differently in a family law matter. As is often the case in family law matters a question from one party may have an adverse effect on the other party.  How does a lawyer mediator answer questions without giving legal advice or advocating (albeit innocently) for one party or the other? At Nelson, Krueger & Millenbach, LLC, we believe mediation is a valuable tool and resource in many family law matters. As such, we often use the assistance of lawyer-mediators in cases where we need a neutral opinion on unresolved disputes.  However, at all points during the case, and during the mediation, our clients have an advocate who is consistently working to advance your interests and explain the consequences of your decisions.  This is not a benefit afforded to litigants who move forward with mediation without the benefit of advocate counsel.

Lawyer-mediators also cannot act on the behalf of a party in court, cannot assist the parties in court matters such as scheduling or procedure and cannot appear in court with the parties.  Many people are confused and intimidated by the court system.  Advocate counsel can assist you in all aspects related to the court system itself.

So, while lawyer-mediators may assist advocate attorneys greatly in family law matters, they have different roles than advocate attorneys and that should be well understood before the decision is made to use only one or the other.

If you have a family law matter that you wish to discuss with an advocate attorney at our firm, please do not hesitate to call our office at 414-258-1644 to set up a free consultation with one of the attorneys.

Mediation in a Divorce

What is mediation?      

Mediation is a non-binding process that allows parties to be more in control of the decisions made during your divorce.  They sit down with a “neutral” person (the mediator) to discuss and, hopefully, resolve any outstanding issues.  If the parties have attorneys, their attorneys are usually involved in this process as well; except in Wisconsin, attorneys are not usually involved in custody and placement mediation.

Since mediation is a non-binding process, decisions cannot be imposed on the parties, as they can and will be by the judge in a court trial.  In mediation, decisions are only made if the parties voluntarily agree to them.

How do you choose a mediator?

The parties can engage in private mediation which is typically conducted by an attorney or former judge who is trained and experienced in the mediation process.  The parties can agree to a mediator or the court can appoint someone.

What does a mediator do?

It is the mediator’s job to facilitate communication, discuss possible proposals with the parties, explain what the court will likely do regarding certain issues, re-focus the parties if they get off track, and ultimately attempt to resolve the outstanding issues.

How does mediation work?

There are two main types of mediation: facilitative mediation and evaluative mediation.  The kind of mediation you choose determines how your mediation will work.

Facilitative mediation is where the mediator encourages and provides a respectful place for communication between the parties.  The mediator works to help each party consider and understand the other party’s position.  The mediator then assists the parties in coming together to reach a compromise and agreement that is acceptable to both of them.

Evaluative mediation is where the mediator reviews each party’s side and position prior to the mediation and provides an assessment of the issues along with possible reasonable compromises to resolve the matter.  This type of mediation is often conducted by a former judge or court commissioner which can be very helpful. Again, since this is a non-binding process, the parties are free to accept or reject the proposed settlement.

The parties and the mediator usually meet at mutually agreed upon or neutral site (the mediator’s office, if they have one, or the office of one of the attorneys).  Mediation can be conducted with all parties in the same room or the parties can split into different rooms and the mediator goes back and forth between them (called caucusing).  This would depend on the requests of the parties or the determination of the mediator as to what would work best given the circumstances in that particular case.

What topics will be covered during mediation?

This depends the issues unresolved in your particular case.  The parties can also decide on which issues to focus on in mediation. The topics covered during mediation include, but are not limited to: distribution of property (assets/liabilities), division of personal property (such as furniture and other household items), child custody and physical placement of the children, child support, maintenance (spousal support).

When can you request mediation during a divorce process?

It is important to know that mediation can be used at any stage of a divorce process.  Parties can use mediation as a first step when the parties have outlined the issues to be discussed. Most often, though, parties engage in mediation towards the end of a case as an alternative to trial to resolve any remaining issues that still exist after negotiation and compromise have failed. At this stage, mediation is frequently ordered by the Court. And, although uncommon, parties can even choose to interrupt litigation to explore the possibility of settlement (if permission is so granted by the presiding judge).

What happens if mediation works?

If mediation works, then the drafting attorney (typically the petitioner’s attorney) will add the agreements into your Marital Settlement Agreement and have the parties sign their approval.  When the outstanding issues in a divorce are all resolved prior to trial, the parties need only appear in court for a “Stipulated Divorce Hearing.”  This is a quick hearing where the Judge finalizes the divorce by asking (his/herself or by the party’s attorney) a series of questions to ensure that the agreement is fair, reasonable, and acceptable to both parties.

What happens if mediation doesn’t work?

Typically mediation is unsuccessful because of one or both parties’ inability and unwillingness to cooperate to try to resolve the outstanding issues.  However, in some cases a party may act in bad faith or not disclose or admit key facts that are crucial to resolving issues which can make mediation appropriately unsuccessful.  If mediation is unsuccessful, the parties will then have to prepare for trial or attempt to resolve the outstanding issues with the help of their attorneys.  It is important to note, the fact that mediation was unsuccessful will be relayed to the Judge at trial, however the details of your mediation will not be exposed.

What are the benefits of mediation?

  1. Confidential: Since mediation is confidential, it promotes open communication between the parties without the fear of it being used against you in court.  Of course, this is not a reason to be disrespectful to the other party (as the mediator will often choose to end hostile mediations); however, it does allow the parties to truly express what they hope to achieve as an ultimate result in their divorce.
  1. Control: The advantage of mediation in a divorce is that it allows you and your soon-to-be ex-spouse more control in the outcome. During mediation, the parties are encouraged to participate and communicate what they hope to accomplish with each other.  The goal is that the parties are able to work together to make the best decision for their family. Whether it is just for a couple and involves only real and personal property, or whether it involves children as well, the parties are the best people to make decisions about their lives.
  1. Cost-effective: While there is a cost associated with mediation, it is almost always more cost effective than a trial on the unresolved issues.  Though there is preparation involved for mediation, it is not typically to the extent of trial.  One example where parties can save costs are in witness preparation and fees.  Even if there are no witnesses to prepare, preparing a client to appear on the stand during a divorce trial takes time and costs the client money.
  1. Time efficient: Mediations are often scheduled well before a trial is scheduled on a matter.  This allows the parties to have finality much sooner than they may have if they waited for a Judge to decide the issues.

What are the downfalls of mediation?

For many of the same reasons that mediation is beneficial, it can also be frustrating.  Bad behavior during mediation cannot be disclosed at the time of trial because of the confidentiality.   As stated above, in cases where the other party is acting in bad faith and being deceitful, mediation is not likely appropriate and not likely to result in resolution.  Also, if mediation is unsuccessful, the parties have then spent additional money they could have used towards trial costs.

As you are going through a divorce it is important to explore all of the options available to you in order to resolve your case, including mediation.  The attorneys at our firm have experience in participating in mediation and are able to determine if and when mediation is appropriate in a specific case.  If you are looking for a divorce attorney who will consider mediation and help navigate you through your divorce, please call Nelson, Krueger & Millenbach, LLC at 414-258-1644 or visit our website at www.nkmfamilylaw.com.