“Court should be your last resort.” If you hire a lawyer, will they tell you that?

Divorce mediation is becoming the popular choice for families who want to save money, time and their co-parenting relationship. The reality is, that if you have children, court should be your last resort. If you hire a lawyer, will they tell you that?

According to their Rules of Professional Conduct, lawyers have an obligation to inform clients of the use of mediation ( or alternative dispute resolution (ADR)): “When appropriate, the lawyer should inform the client of ADR options and, if so instructed, take steps to pursue those options.”. Sounds pretty straight forward and, since statistics demonstrate that 80% to 90% of mediation cases settle, and at a fraction of litigation costs, it seems to be the most commonsensical path to take. So why is it that family courts are packed and the number of divorce legal battles isn’t getting any lower? We all seem to know of someone who has gone through a “divorce from hell”. And it’s a pretty scary reality. But how can that be?

If lawyers have an obligation to inform their clients about a faster, less damaging and less expensive process, is it their clients who refuse to engage in it?

Let’s unpack this a bit. Going back (bear with me) to the written comment in the Rules of Professional Conduct, we can all agree that it is pretty vague and borderline confusing: “(1) When appropriate, the lawyer should (2) inform the client of ADR options and, if so (3) instructed, take steps to pursue those options.”

(1) When is “Appropriate”, Appropriate? And Who Decides?

There is no test or mechanism to determine appropriateness. It is a purely subjective process dictated by the lawyer’s judgement. That is, from the onset, the lawyer gets to decide for the client which path to take them and their respective families on.

What You Can Do:

‍Inform yourself about the benefits of mediation and instruct your lawyer accordingly. Despite the onus being placed on lawyers, it is really up to you to determine appropriateness for mediation. You are the expert of your own family and, with the exception of legal rights and entitlements, your lawyer should follow your lead in terms of future plans for your family.

(2) Informing the client: How is the Information Synthesized and Delivered?

Not all lawyers know about mediation. In fact, many broadcast that they, personally don’t “believe” in mediation. This begs the question: what type of information do clients receive? Without any expectations or standardized protocols, this is left in the subjective sphere. One can easily imagine the inconsistencies in information clients get about mediation.

What You Can Do:

‍Everyone is entitled to their own views. If your lawyer tells you that they don’t “believe in mediation” and you want to proceed with mediation you might have a conflict. Ensure that your lawyer’s personal bias does not impact your representation.

A supportive lawyer in mediation will make a huge difference! They are easy to recognize. They would:

• Respond to the other party’s requests in a timely and respectful manner;
• Collaborate with the other party in creating practical options;
• Promote (and keep you focused) on resolution; and,
• Respect the mediation process without interference.

(3) Who Instructs Whom?

The lawyer-client relationship is supposed to be a collaborative partnership. However, when the relationship is structured so that the lawyer is in the position to decide when and what information the client receives regarding mediation, the collaborative spirit is questionable, to say the least. A client cannot possibly be expected to instruct on mediation unless they have been adequately and appropriately informed about it, which, it has become obvious, is not the case for everyone.

What You Can Do:

‍If your lawyer doesn’t inform you about mediation from the onset, seek the advice of another. A lengthy court proceeding will never benefit you or your family.

Divorce is hard enough, especially when children are involved! You need to be supported, informed and appropriately guided. This requires some homework on your part, so that you are equipped, and in a position, to instruct your lawyer if you choose to be represented in mediation (you don’t have to).

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