April 28, 2010

Mediation and Collaborative Practice: What About The Law?

The role of the law in mediation and Collaborative Practice is a frequent discussion among divorce professionals, and I had the pleasure of addressing this topic, with three colleague friends of mine, at the recent Collaborative Practice California Celebration V conference. For our presentation we came up with a few main points:

  • In mediation and Collaborative processes the law does not control
  • To reach resolution in either process you only need the consent of the other person
  • The law serves two purposes in mediation and Collaborative Practice:
  1. It is a source for resolution options; the law is about how other people resolve their divorce issues.
  2. It is necessary to an analysis of whether you will achieve your best possible outcome within a mediation or Collaborative Practice process, or if your best possible outcome is more likely to be achieved in a process where the law does control

Sometimes I have clients who, when told the possible outcome spectrum of the law on a certain subject, respond by saying, “That’s great. I want that. Let’s do that.” That’s when I remind them, it’s an option to follow the law if their spouse agrees with them, but only to the extent that there is agreement. And if their spouse doesn’t agree with them, then we’d need to do a comprehensive risk/benefit analysis of the repercussions of leaving the mediation process for the traditional adversarial process. That analysis includes the cost of an attorney to get that outcome; the likelihood of losing on that issue or other issues; what the law is on other issues—maybe the law seems great on one issue, but seems terrible on another issue; the risk of losing control of the terms of the agreement to attorneys and/or a judge; the affect that fighting out in a traditional process might have to children or family.

In my office, it’s typical for that big picture to put the law right back in its place as a reference source for potential ways to approach issues—and we go back to working out an agreement that is acceptable to both people.

Unmani is exceptionally gifted at mediating difficult situations.

Unmani is exceptionally gifted at mediating difficult situations.  At critical moments when the dialogues seemed about to derail, Unmani masterfully steered us back on course.  Her calming influence, insights on the legal requirements, and laser focus on the relevant issues very positively influenced the outcome of our divorce settlement and subsequent mediation qualitatively and quantitatively.  In fact, my ex-wife and I would not have the solid, congenial co-parenting relationship we have today without key conversations—including very difficult ones—we had only because it was safe to have them with Unmani present.

- Damian R.
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