March 27, 2019

Legal Representation in Mediation

Connecticut Lawyer is the Connecticut Bar Association’s magazine for Connecticut lawyers.  An article in the March/April 2019 edition starts “In an era in which the number of cases that go to trial is in great decline, effective representation, more than ever, includes skillfully representing clients throughout the mediation process.”

In the divorce and family context, mediation generally follows one of the two following paths.

1. The  most common is when the divorcing couple or separating parents meet directly with a neutral mediator in the absence of lawyers other than the mediator. 

Many  couples retain a private mediator so they can work on the divorce or parenting conflict free of  some of the limitations, controls and constraints of the court system.  But sometimes the mediator is part of the court system, such as when parents meet with a Family Relations Officer  early on in the divorce to mediate a custody dispute. Whether the mediation is private or court sponsored, in most circumstances, each divorcing spouse or separating parent will benefit by receiving  advice and guidance from their own individual lawyer, often called review counsel or consulting attorney.   A skilled review counsel or consulting attorney supports the mediation process but has a responsibility and duty only to their own specific client.  Consulting counsel can help make the mediation outcome more successful for their client than it might otherwise be although he or she isn’t attending the sessions.

2.  There are times when the lawyers for each member of the divorcing or separating couple participate in the mediation, typically taking on a more active role than their clients. 

These lawyer focused rather than client focused mediations can be part of the official court system.  But  frequently private mediations are taking place in response to the limitations and weaknesses of the courts.  Although zealous advocacy in a mediation setting is different than a courtroom trial, a good lawyer can have a significant impact on the result of the mediation, whether private or court sponsored, for the benefit of their client.

The Connecticut Lawyer article offers it’s lawyer readers concrete steps to achieve the best possible mediated outcome for their clients.  But the lesson for anyone facing a divorce or family court conflict is much simpler – When choosing your lawyer, make sure the lawyer has at least as much  experience and skill mediating as he or she has in the courtroom. 


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