The practitioner should always inform the client that there is an alternative option for dispute resolution. An agreement that is reached by the clients with the help of their attorneys is more likely to be an all-inclusive document than the judgments that would be received after a trial. Accordingly, mediation is an effective tool for the fast and efficient resolution in a divorce case. In many jurisdictions, mediation is deemed compulsory with respect to custody and visitation. The attorney will continue to be involved, but it is in a different role when mediation occurs.
In the case of child custody and other related issues, the client needs to be warned of the potential consequences of mediation. It is typically considered a privileged session, but, a client who airs his or her differences might alert the other party to any weaknesses in the client’s case, which could give the opponent the opportunity to make his or her case stronger.
It is important that the client understands the way mediation works. The mediator’s role is to attempt to aid the process of making decisions. Regrettably, when one of the parties is being intractable on his or her position, the mediator might focus on the party who is more flexible to determine whether that party is willing to change his or her position. In situations such as this, one of the parties might, for no apparent gain, sacrifice his or her positions.
If a client is not aware of the extent and nature of the family income, expenses, assets, and liabilities, he or she will not be capable of mediating the financial issues effectively. The client must be knowledgeable in regards to the disclosure form and be able to rely on it comfortably during the mediation process. If questions exist relating to accuracy, full disclosure, or the like, then the mediation session is premature. To the degree that valuations are needed, the practitioner should assist the client in selecting an independent or a joint appraiser to valuate real estate, businesses, and defined contribution plans etcetera. Without appraisal, the client who is in mediation may be taking substantial risk, and ultimately the practitioner could be blamed.
The attorney also should discuss with the client the disputed issues before the mediation and explain to him or her the way the law will be applied if the case is litigated. In example, whether business deductions are appropriate in calculations of child support, or, in a removal case, the burden of proof.
Finally, the practitioner should go on counseling the client for the duration of the process of mediation. It is advisable to review draft agreement copies throughout the process and call attention to omissions or errors so they can return to the mediator. Failing to do this could result in an unsatisfactory or incomplete agreement.