When beginning mediation with all parties and their attorneys in the same room, I ask the parties to give their attorneys permission to be problem solvers and not advocates.
Parties usually expect their attorneys to do battle. Lead the charge. Protect, defend and pursue their interests. That is how they see advocacy, which is essentially argument or persuasion.
When using the court system as a problem solving strategy, persuasion is necessary. Someone else is deciding for the parties. Attorneys are trying to convince the court to do what is best for their client.
In mediation the parties decide. In the mediation environment, argument or persuasion does not work and is often counter productive.
The attorney as problem solver.
Mediators and attorneys have similar goals. We want our clients to settle their case in a way that best meets their needs. We want them to reach agreement from an informed place, with confidence they are making good decisions, and as much as possible, without pressure. Attorneys present in mediation can enhance the possibility of achieving these goals.
Help with communication. Attorneys can help by identifying agreement. Often parties, out of pessimism born of frustration, assume agreement is impossible and will argue even though they agree.
Parties often are distressed by or happy with a proposal that was made in the past. Attorneys can help by confirming a proposal was made and, if it was, whether it is still on the table. This will reduce confusion and help keep parties in the here and now planning the future, which is exactly where they need to be.
Attorneys can help by clarifying needs and interests and by developing options for dealing with them. Attorney’s understanding of the issues in divorce make the identification of needs and interests easier. Their experience addressing issues make them a valuable resource for identifying strategies for meeting needs.
Help identify needs and strategies to address them. Attorneys can listen for and identify the needs and interests expressed in a rationale or proposal. If a proposal is unacceptable, they can then help identify alternatives that address the concern and meet their clients needs and interests.
Attorneys provide valuable information. Attorneys providing information about the law and courts will help get the parties to an informed place. Information by itself is neutral. When attorneys remove the effort to persuade, the information will be easier for the parties to hear.
Our clients look to us to help them figure out how they should feel, think, and whether they are doing OK. The messages we give them through the words we use or our emotions can contribute to their calm and optimism. If you see the pilot of your plane and she/he looks worried, you are going to worry. If the client looks at their attorney and they see calm in the face of craziness, they will be helped to remain calm themselves.
Dealing with emotions. Misunderstanding and lack of clarity contribute to parties fear and anxiety. By clarifying needs and interests, developing options for dealing with them, educating about the law and how the courts deal with the issues the reasons for fear and anxiety will be definable. Because of the resulting increased understanding, usually, fear and anxiety are reduced.
Attorneys working together as problem solvers in mediation is a powerful strategy. It increases the likelihood of settlement. It models effective problem solving. When the parties are divorcing parents with minor children, they need to figure out how to make decisions together in the future.