Michael L. Leshin, BridgeTower Media Newswires
The 40th anniversary of my admission to the bar seems as good a time as any to reflect on the changes in divorce mediation through the lens of a lawyer and a mediator. Each role informs and enhances the other, how we represent clients and mediate with clients.
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Mediation pedagogy
Over the past 40 years, mediation training programs have sprouted and flourished. John Fiske’s Divorce Mediation Training Associates’ program was one of the first. In 1979, the Community Dispute Settlement Center was formed and began offering mediation services as well as trainings. Others followed, including Mediation Works and MCLE.
The successor to the Family Mediation Association and Academy of Family Mediators, the Association of Professional Family Mediators, was formed in 2011, carrying on a tradition of providing mediation trainings.
Conferences expanded the scope of programs, and trainings expanded the scope of syllabi. The teaching of process was woven into such topics as the Internal Revenue Code, equity compensation, trust interests, and complex real estate holdings.
Mediator competency has grown to include financial literacy in those areas as well as understanding entities such as subchapter S corporations, LLCs and LLPs.
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Role of lawyers
Representing mediation clients has dramatically changed over the past four decades as well. Lawyers have evolved as integral to the mediation process. Attorneys trained as mediators bring a nuanced and supportive approach to representation, helping clients strategize how best to approach a particular issue.
Concomitantly, many lawyers, although not trained mediators, have similar wiring (perhaps nurtured by mediation). They meld zealous advocacy with respect for client autonomy. Our prime role is to ensure that our client makes informed decisions.
Years ago, a client reached out to me to review his mediation agreement when it was nearly completed. The agreement, as drafted by a very skilled mediator, was particularly generous in terms of his alimony commitment. His was a long-term marriage with two emancipated children.
I provided him with my view of the custom and practice with regard to alimony in long-term marriages, as informed by the Alimony Reform Act. I did not view my role as dissuading him from entering into the agreement. Rather, I sought to “raise his consciousness” of the risks for him were he to fall ill and/or lose his job. Had he balanced what turned out to be “infidelity guilt” with ensuring he was taking care of himself?
He asked me to help him revise the agreement to find a more equitable, delicate balance between remorse and self-preservation. Although more than annoyed, his wife and her counsel graciously pivoted and engaged anew in negotiations, this time through lawyers. A year later, a renewed settlement was reached.
Conversely, there remain lawyers who stir the pot, who patronize and grandstand. During one mediation, the husband relayed that his lawyer told him she would not “let” him agree to particular terms, reviewed (not agreed upon) in an earlier mediation.
Some lawyers lack the requisite nuance, others the requisite family law grounding. Mediators can note that reasonable lawyers may disagree, analogize to the world of medicine where second opinions can be very helpful, and/or inquire as to whether the lawyer was apprised of a particular fact(s) in rendering such advice.
Offering a menu of venues can help unravel juggernauts: (a) two-way (lawyers only); (b) three-way (mediator and lawyers); (c) four-way (lawyers and clients); or (d) five-way (lawyers, clients and mediator). With any of these choices, clients sacrifice some agency. Moreover, (b) and (d) are typically evaluative; and with (d), confidential caucusing typically occurs.
Lawyers serve as “transformation agents of reality.” We shape the client’s expectations of what is fair and reasonable as well as the dynamic customs and practices of family law.
Following a client consultation, one lawyer might advise the client to immediately file a complaint for divorce in tandem with ex parte motions. Another lawyer — same client — might advise that a letter to his/her spouse, framing choices of litigation, attorney-negotiation or mediation, would best serve his/her interests. The challenge is to determine whether a bilateral bridge can be built so that each client can meet his/her spouse on their side of the river.
As mediation continues to mature, as law schools continue to offer mediation courses and clinical programs, newly minted lawyers should become ever increasingly more adept at representing clients in mediation. Zealous advocacy does not mean dissuading clients from generosity as long as such provisions are fair and reasonable (as subjective as that concept may be).
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Role of mediators
The role of the mediator has likewise dramatically changed. Non-lawyer mediators recognize the need to assiduously keep abreast of legal and financial issues. Understanding “red flags” is key — e.g., a potential capital gain issue attendant to the sale of the marital home. The mediator may be unfamiliar or not comfortable with equity compensation or pensions. He or she can inform clients of the need for expert assistance to help them navigate those issues.
Lawyer mediators recognize the need to understand basic precepts as to child development. For example, children are not reliable reporters and primary attachment to a caregiver by a young child requires careful navigation in devising a parenting schedule. Consultations with a child therapist may be appropriate.
As mediation has matured, hubris has blossomed. Lawyers and retired judges hold themselves out as mediators yet march to the beat of a different drummer. A law degree or the bench does not a mediator make.
Conversely, training is not necessarily an accurate litmus test of a lawyer’s mediation skills. There are lawyers who have no formal training yet have an uncanny aptitude for mediation. They’re keen listeners, compassionate and creative.
Others have been trained yet “don’t get it.” They treat mediation as a deposition. They don’t correct power imbalances and are tone deaf to how the clients perceive the process. They lack the patience to listen and trust silences, one of the harder skills to master. Holding onto the mediation table for dear life while admonishing oneself to remain silent is challenging. Clients will find their own level of water for when the spirit moves them to speak.
Skilled lawyer-mediators are comfortable with ambiguity and whacky proposals. They elegantly navigate such rapids, steering the process (facilitation, not evaluation) in service of self-decision making.
Those not so skilled jump to evaluation, squelching client autonomy. Much like skillful parenting, allowing clients to find the solution themselves (without harm) provides for more durable settlements.
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Financial and legal landscape
Over the past four decades, the finances of well-resourced clients have become increasingly complex. Back in 1982, equity compensation was a benefit afforded only senior management, if at all. QDROs had only recently appeared on the family law landscape. Private equity investment seems to be a creature of the 21st century. Accordingly, mediators drafting agreements with such facets require ever more sophisticated skills and an understanding of case law, e.g., Baccanti and Ludwig.
Knowing when to relay the option of including experts in the process is key. Parties can jointly engage all manner of expert, many of whom have a sensitivity for mediation. They understand neutrality. They restrain from advising clients as to any one particular solution. Rather, they provide clients with the “data” so they can make decisions of how to address issues such as the intertwining of support and property as informed by a business valuation, as well as rental property or defined benefit plan considerations.
Unlike a lawyer drafting for his/her client, the mediator provides language that elucidates the choices clients have with regard to such sophisticated financial issues. Marginal comments are invaluable for giving voice to each client’s interests. Lawyers provide “value-added” in scrutinizing such complex provisions.
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Personal reflection
For many, myself included, working within the world of mediation — as lawyer or mediator — is more than a job. It’s a way of life, of how to “be” in this world.
Keen listening, compassion, open-ended questions, holding paradoxes, and searching for common ground defines us.
The world of mediation never ceases to be rewarding, vital and vibrant.
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Michael L. Leshin is of counsel to the family law firm Goldman & Sidgwick in South Natick. Previously he was a partner at Ginsburg & Leshin for 23 years, and prior to forming his own firm a family law attorney and mediator at Hemenway & Barnes.
