Feb. 15, 2017 – Mediation is well understood as a process in which a neutral helps resolve issues between two or more clients. Less well understood is that there are sweeping differences between mediation processes when clients are represented by lawyers and when clients are self-represented.
When clients have lawyers, the mediators are often retired judges or seasoned practitioners who separate the parties and shuttle back and forth until there is an agreement or the process terminates. If there is an agreement, the mediator prepares a written memorandum of understanding and the lawyers prepare the marital settlement agreement and all other documents needed to secure the divorce and implement the agreement. The representing lawyers carry over advocacy into the drafting.
An Entirely Different Process
The mediation process with self-represented clients is entirely different.
Diane Diel (Wisconsin 1976) of Diane S. Diel S.C. practices family law in Milwaukee. She is a past president of the State Bar of Wisconsin, past chair of the Wisconsin Collaborative Family Law Council, and past president of the International Academy of Collaborative Professionals.
Lawyers entering into mediation practice with self-represented clients must learn to both listen and speak in different ways than in traditional representation. The lawyer-mediator helps the parties define their goals and consider options. The lawyer-mediator must listen for places of agreement and reasons why there are no agreements, instead of listening for facts or opinions to support a position.
Instead of speaking to support a position or refute an opposing position, the mediator needs to provide information about the law to clients. Providing information about the law is distinctly different from providing legal advice about recommended outcomes.
Likely Effective Date: July 1
Mediation with self-represented parties is on the rise. With the Wisconsin Supreme Court's approval of Petition 16-04, which allows a neutral lawyer to draft the documents necessary to confirm, memorialize, and implement the agreement in family law cases, the lawyer-mediator is now ethically able to help mediation clients to the end of the process.
The rule was developed by the Wisconsin Supreme Court's Policy and Planning Committee as a component of its development of the new rules relating to Limited Scope Representation. The deciscion is a “positive step forward for the public, the legal profession, and the courts," says Judge Michael J. Dwyer, presiding judge of Family Division, Milwaukee Circuit Court, and chair of the Subcommittee on Mediator Drafting. The supreme court decision is "a trend-setting response to the evolution of family law,” Judge Dwyer said.
It will be important for lawyer-mediators who want to draft documents to learn a new set of skills in order to neutrally draft as a mediator.
With a likely effective date of July 1, 2017, lawyer-mediators will be able to draft settlement agreements and all other documents necessary to finalize divorces and implement the agreements and terms of the Judgment of Divorce, subject to the SCR duties of competence and diligence.
Drafting Neutrally
What does it mean to be a competent and diligent mediator drafter? This is certainly not the same as preparing a memorandum of understanding at the end of a mediation. Few family lawyers have experience drafting neutrally.
What will it take to become a skilled neutral drafter? It is easy to understand the requirements of diligence. The duty of competence is not as simple when there is little experience for the role. "Competence" is defined by the word "competent" in SCR 20:1.1 as follows:
SCR 20:1.1 Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Lawyers entering into mediation practice with self-represented clients must learn to both listen and speak in different ways than in traditional representation.
It will be important for lawyer-mediators who want to draft documents to learn a new set of skills in order to neutrally draft as a mediator. Perhaps lawyer-mediators start by thinking about the hallmarks of a well-drafted settlement agreement. We can likely agree that competently drafted marital settlement agreements are clear, enforceable, and accurately reflect the goals of the parties.
If clients reach an agreement to divide a qualified retirement plan, the competent mediator drafter should address in the mediation all the necessary implementation steps such as who prepares the QDRO and who pays for that division. If clients agree in mediation on a maintenance amount, the lawyer-mediator drafter will need to provide information to the clients that allows them to decide the term of such payments and whether the payments are open-ended or are to have definition as to term and amount. Neutral lawyer-mediators drafting marital settlement agreements need to carefully focus on each detail of the agreement and ask themselves whether the clients have reached agreements on all issues that are required for clarity, enforcement, and durability.
A Different Skill Set
The Wisconsin Supreme Court has given Wisconsin lawyers an exciting opportunity to help their mediation clients and the courts. The challenge for lawyers is to recognize that neutral drafting requires a completely different skill set than drafting as an advocate.
Lawyers who wish to become mediator-drafters will need to listen to the clients, provide significant information about the means to implement the agreements, capture the agreements, and reflect those agreements in a competently drafted legal document. What will be necessary is that lawyers engaging in mediator drafting commit themselves to learn a new skill set for neutral drafting.
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