Blog

June 26, 2011

My Safest Clients: A Road More Traveled

Since my last post, dated April 23^rd,  I’ve had some time to ponder the feedback I’ve gotten about my “happiest” clients who didn’t engage my legal services until the very end of their interdisciplinary divorce mediation process.  The majority of the feedback was from fellow professionals expressing some form of unease at the thought of bringing in a legal professional at the very last minute of a mediation process, an unease that I share in most cases.  In my last post, I thought I’d share the story of some folks who had an extreme aversion to legal professionals, and how well their client-centered mediation process fared for them.  But I do not believe that their response is the best response in most cases. Maybe I’m biased towards my profession, but even though I poo-poo the notion of attorneys being the most important team member in a hierarchical team, I still see legal professionals as a prudent element to include in a mediation process from the very beginning.

It’s natural for many of us to run to traditional attorneys for guidance at the beginning of a family dispute, which can be the beginning of an arduous road, fraught with the alienation and anger that positional bargaining based on legal notions can cause.  And because of the potential result of an expensive, low-quality resolution, it’s wise to hesitate before automatically engaging a traditional attorney.  But, at the same time, most family disputes like divorce or probate have far-reaching legal complexity that is ignored at a client’s peril. Here are a few potential benefits of engaging a legal professional, like a mediator, at the beginning of a family dispute:

• Properly filing court paperwork to preserve rights or restrain certain behaviors, ie. ensure safety and discourage bad faith actions
• Creating, through contract, the confidentiality of the mediation process per the California Evidence Code
• Pointing out conversations that must be addressed from a legal perspective during the process, ie. issue spotting
• Ensuring that everyone is acting in a sophisticated manner as relates to potential legal, and possibly tax, consequences of contemplated actions

So while I recommend that people weigh very carefully the choices at hand relative to engaging legal professionals—from the extremes of aggressive litigators to facilitative mediator-attorneys—I do believe that most people are best served by getting legal information at the beginning of a family dispute, rather than at the end.