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The Progressive Lawyer
Mediation and most other forms of alternate dispute resolution are typically employed in advance of the court process. Eleventh-hour divorce facilitation, shortly before a scheduled trial date, differs greatly from divorce mediation convened early on in a case. When mediation is attempted before any litigation begins, the parties often attend without their attorneys. The mediator tries to help the parties reach an agreement by promoting a resolution of the issues. In such situations, the mediator must be very careful not to provide legal advice to the parties. This is difficult, particularly if the mediator is an attorney. Although attorneys usually do not attend mediation before or during the early stages of litigation, it is generally advisable for the parties to consult with legal counsel prior to participating.
Attorneys are usually a part of the mediation or facilitation process, however, if the mediation takes place later in the litigation, or if something like this author's Progressive Divorce(R) or Collaborative Law approach is used. The presence of an attorney allows the mediator to approach things in a somewhat different way. The mediator can be creative in discussing alternate resolution options with the attorneys, as well as with the parties, and does not have to be concerned that the parties might think the mediator is giving legal advice. The mediator, employing a form of “shuttle diplomacy,” can caucus with each side individually, allowing separate discussions to take place in confidence. Confidentiality is particularly important where the parties need to preserve the unknown elements of certain litigation strategies for the trial.
Shuttle diplomacy also allows the mediator to buffer non-productive emotional responses, especially because emotions often run high late in the litigation. Separation is usually mandatory where there are domestic violence restraining orders in place, and advisable where there are power imbalances between the parties.
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