The law governing lawyers, shores up the primary duty of loyalty though secondary rules that guard against certain particularly worrisome or prominent forms of disloyalty. The most important of these are the conflict of interest rules, which regulate, or even forbid, a wide range of activities through which lawyers might be tempted to betray their clients. Most generally, these rules impose restrictions— including procedural restrictions requiring written informed consent and substantive restrictions against waivers of the duty to be competent and diligent—on lawyers’ freedom to represent clients when “the representation of one client will be directly adverse to another client” or, more broadly still, when “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

More narrowly, the rules take aim at certain especially troublesome behaviors. For example, they forbid lawyers from “using information relating to representation of a client to the disadvantage of the client unless the client gives informed consent.” They impose an outright ban on representations that “involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.” They forbid lawyers from writing themselves into their clients’ wills or appropriating literary or media rights in their clients’ stories, and they quite generally insist on substantive fairness in business transactions between lawyers and their clients. And they forbid lawyers from being paid to represent clients by third parties who interfere with the lawyer client relationship. In these and other ways, the law emphasize and enforce the lawyer’s duty of loyalty. An experienced Midvale Utah divorce lawyer will be loyal to you and will not indulge in any forbidden activities.

In spite of its central importance to legal ethics, lawyer loyalty cannot stand alone. Loyalty carries no content apart from the end to which it refers—loyalty, even zealous loyalty, requires an object. And the loyalty and zeal provisions in the ethics codes, even when supplemented by the conflicts rules, do not adequately fix their own objects, because identifying “the client” as the object of the lawyer’s loyalty and the end of her zeal is not enough to fix the lawyer’s professional duties in a meaningful way. Saying simply that the lawyer should be loyal to the client does not determine to what about the client the lawyer’s loyalty should attach, and this choice will dramatically affect the nature of the lawyer’s ethical life. Indeed, in the extreme case, if the lawyer’s loyalty were tied to the client’s interest in moral or legal rectitude—to the client’s justice, as one might say—then the lawyer would cease to be meaningfully an adversary advocate at all. In order to represent her client loyally, she would be required first to judge her client’s cause to determine what protecting his rectitude required.

Most importantly, the ethics codes protect client control over ends from encroachment by the lawyer’s superior knowledge and technical expertise, which often pose the gravest threats to client autonomy. Thus, although the ethics codes recognize lawyers’ technical expertise by giving them limited control over the means through which to pursue the ends that clients set,29 the line between “means” and “ends” is given a flexible rather than rigid interpretation—one that emphasizes client control. In particular, choices that would ordinarily be classed as involving mere means and therefore allocated to the lawyer—for example, respecting the aggressiveness of a cross-examination—are treated as involving ends and allocated to the client as soon as they impinge on the client’s broader values.

 

 

Lawyers are, to be sure, permitted, and perhaps even encouraged, to offer clients independent counsel even within the sphere of client authority—that is, not just in matters of technical law but also, as the Model Rules say, concerning “other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” But even the practice of counseling clients concerning the ends of a representation serves, finally, to reemphasize the clients’ ultimate authority over these ends. An experienced Midvale Utah experienced divorce lawyer may advise but must never command, and will take care, in offering advice, to avoid unduly influencing the clients.

Even though lawyers should advise their clients broadly, they may not use their positions as advisers to subvert clients’ autonomy. The strong principle of lawyer loyalty is supplemented, in the ethics codes, by an equally strong principle of client control.

Legal Assertiveness

Even taken together, lawyer loyalty and client control do not fix the nature of lawyers’ professional obligations. The duties that lawyer loyalty and client control actually impose on lawyers depend on the range of objectives that clients and their lawyers may jointly pursue and the range of means that clients and their lawyers may use to pursue these objectives. And the questions therefore remain just what clients may command their lawyers to do and just what client commands lawyers may follow.

The creation of an agency relation binds the agent to her principal but does not generally alter the scheme of duties that the principal and the agent (as his stand-in) owe third parties: a principal generally may not pursue ends through an agent that he may not pursue directly himself; and, an agent generally cannot avoid obligations to others by hiding behind the agency relation. Thus the law makes both principals and agents liable when agents take actions on behalf of their principals that tortiously harm third parties. Accordingly, if the assertion of legal claims were governed by a standard of strict liability or even negligence, so that clients who asserted and lawyers who promoted losing or unreasonable claims were liable for the harms that they caused, then this liability would impose external constraints on the loyalty that clients might demand and that lawyers might display.

The foundational principles of adversary advocacy require lawyers to promote the causes and assert the claims that their clients choose, even when they doubt (or indeed reject) the claims’ merits. Lawyers must assert their clients’ factual and legal positions even when they privately find the opposing positions more compelling; and lawyers must promote their clients’ causes even when they privately conclude that their clients do not fairly deserve to have these causes succeed. Moreover, lawyers must act in these ways even when their private doubts about their clients’ positions are correct and even when their clients’ positions are (within limits) unreasonable.

Lawyers owe duties of candor to the courts before which they appear. These are strongest concerning direct communications with courts and with respect to facts. Thus the Model Rules, for example, forbid lawyers from knowingly making false statements of material fact to tribunals or offering evidence that they know to be false, and, moreover, require lawyers to correct false statements of material fact that they have previously made and to take reasonable remedial measures if they come to learn that evidence that they offered in good faith is false. Similarly, the Model Rules require lawyers who represent a client before a tribunal to take reasonable remedial measures, including disclosure to the tribunal, when they know of criminal or fraudulent acts related to the adjudicative proceedings at issue. Indeed, these basic principles apply, although perhaps in an attenuated form, even to criminal defense lawyers: the Supreme Court has held, in Nix v. Whiteside, that it is not unconstitutionally ineffective assistance of counsel for a defense lawyer to refuse to assist her client in committing perjury and indeed to force her client to testify honestly (or not at all) by threatening to reveal his perjury. These duties of candor expressly trump the duty of confidentiality that ordinarily governs lawyer-client relations. Finally, lawyers, at least in civil proceedings, may generally refuse to offer evidence to a tribunal when they reasonably believe (even if they do not know) that the evidence is false.

Lawyers’ duties of factual candor toward tribunals also extend, although less rigorously, to circumstances in which tribunals are only indirectly involved and to actions that are only indirectly communications. Even when not immediately before a tribunal, lawyers must preserve, and in some instances hand over, evidence. They may not falsify evidence or counsel or assist witnesses to testify falsely, or (more broadly) counsel or assist clients to commit fraud on tribunals. And even when factual statements are not directly involved, lawyers may not assert claims or defenses that are factually frivolous or that neither have nor are expected to develop a reasonable basis in fact.

Lawyers also owe tribunals duties of candor with respect to law, although these duties are perhaps weaker than their duties with respect to facts. Thus the Model Rules, following a long line of authority, forbid lawyers from knowingly making false statements of law to tribunals and, moreover, require lawyers to disclose controlling legal authorities that they know are directly adverse to their clients’ causes. And the Model Rules, in conjunction with the law of procedure, forbid lawyers from asserting arguments whose legal basis is frivolous. Finally, the Model Rules probably allow lawyers to refuse to argue against their most fundamental legal and moral beliefs, in particular by withdrawing from representations, or declining court appointments, that would require them to do so.

Second, lawyers owe duties of candor even to third parties, although these are in important ways weaker and narrower still. Most straightforwardly, the Models Rules forbid lawyers from affirmatively assisting clients in conduct that the lawyers know is criminal or fraudulent, and they also more broadly prohibit lawyers from knowingly making false statements of material fact or law to third persons. Moreover, although more controversially, the Model Rules require lawyers to take corrective action when they discover certain frauds against third parties by disclosing material facts when this is necessary to avoid assisting their clients in criminal or fraudulent acts, but only insofar as they can do so without breaching the professional duty of confidentiality. Under the current version of the Model Rules, this regime requires lawyers to make disclosures necessary to avoid assisting clients in frauds that threaten reasonably certain death or substantial bodily harm or that use the lawyers’ services and are likely to result in substantial harm to the property of third parties. In addition, lawyers may (but need not) make disclosures necessary to prevent reasonably certain risks of death or substantial bodily injury even apart from any crime or fraud and even when the lawyers’ services have not been involved in creating the risks. Finally, lawyers sometimes have duties under generally applicable law to disclose certain facts to third parties.

Most prominently, the rules of procedure require lawyers to cooperate with discovery, sometimes including by identifying, even without a discovery request, persons and documents that they will use to assert their claims or defenses. The law of fraud, insofar as it treats nondisclosure as participation in a fraud, also requires lawyers to make certain disclosures. And other, narrower and more idiosyncratic legal regimes, for example, concerning threats to children, require disclosure as well. The Model Rules support these externally created duties to disclose: they specifically forbid lawyers from refusing reasonable discovery requests; and, more broadly, they now permit lawyers to break client confidences in order to comply with the law.

Taken together, the provisions of the law governing lawyers place significant limits on lawyers’ professional duty (and indeed license) to lie for their clients.

The law governing lawyers thus counterbalances the organic pressures to lie established by lawyer loyalty and client control with a series of restrictions that, although surely important, remain self-consciously and insistently technical.

Lawyers may not subvert the adversary process entirely. Thus, a lawyer may not seek illegally to influence a judge or juror or intentionally to disrupt a tribunal. Moreover, lawyers are forbidden certain less direct means that undermine the legal process, so that, for example, a lawyer who participates in litigating a matter may not seek through publicity to prejudice the adjudication of the matter. Finally, a lawyer may not knowingly disobey the rules of a tribunal.

Similarly, lawyers may not transgress the boundaries of the adversary process by extending their adversary practices to circumstances outside the adversary system’s structural frame. Thus, a lawyer may not exploit circumstances in which her opponents are absent. She may not communicate ex parte with judges or jurors save where she is authorized to do so by law or court order; and even when ex parte communications are permitted, she must dampen her adversariness and may not exploit an opponent’s absence to present a one-sided view of a dispute. In addition, a lawyer may not misuse persons who do not understand her adversary role. Thus, a lawyer who communicates, on behalf of a client, with unrepresented third persons may not deceive them into thinking she is disinterested and must, moreover, make reasonable efforts to correct even misunderstandings of her role that she did not cause.

These restrictions are not surprising. Without the restrictions against subverting the adversary process, or their functional equivalents, adversary adjudication would become simply impossible, because the adversary frame in which it occurs would collapse. Without the restrictions against transgressing the adversary process, or their functional equivalents, adversary lawyering would become unbalanced, because it would be disconnected from the process that underwrites its justification.
The law forbids a range of unscrupulous litigation tactics, for example, bringing one suit merely to delay enforcement of a judgment in another in order to gain time to raise money for a supersedeas bond (only to dismiss the second suit once the money has been raised), asserting a frivolous defense on appeal solely to delay an inevitable judgment for specific performance, filing a frivolous cert petition solely to delay the finality of a judgment and allow a client to benefit from the spread between market interest rates and the interest rates applied to court judgments, or employing scheduling shenanigans designed purely to waste an opposing party’s resources or inconvenience its witnesses.

Lawyers do enjoy a broad right to withdraw from a representation for more or less any reason, including on moral grounds, when withdrawing has no materially adverse effects on their clients’ interests. This is unsurprising, because a harmless withdrawal does not offend the principles of lawyer loyalty and client control that generate lawyers’ professional morality. The difficult cases—the cases that establish the effects of the possibility of withdrawal on lawyers’ professional obligations—arise when a lawyer’s withdrawal will harm her client. When a lawyer whose client pursues unjustified claims cannot withdraw without prejudicing the client, she becomes caught between ordinary morality on the one hand and the professional ideology of adversary advocacy on the other: continuing in the representation requires her to lie and to cheat, but withdrawing violates the principles of lawyer loyalty and client control.

An experienced Midvale Utah divorce lawyer will withdraw, including when withdrawing prejudices her client, if continuing in a representation “will result in violation of the rules of professional conduct or other law.” For example, a lawyer must withdraw, including prejudicially, if her client insists on committing what the lawyer knows to be perjury, because continuing in the representation would violate Model Rule 3.3(a)(3), which forbids lawyers from offering evidence that they know to be false. Similarly, a lawyer must also withdraw, again even prejudicially, if her client insists on filing frivolous claims or making frivolous arguments. Additionally, a lawyer may withdraw (although she is not generally required to) when a client “persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent,” or when a client “has used the lawyer’s services to perpetrate a crime or fraud,” even though continuing in the representation would not violate any ethics rule or other law. Provisions import principles that require candor and respect toward tribunals during ongoing representations into the law of withdrawal, so these provisions import some of the principles that promote respect for third parties during ongoing representations into the law of withdrawal.

Divorce Mediation

Since 2005, Utah has required all contested issues to be referred to mediation once a Respondent answers the divorce petition. At a minimum, both parties must participate in one mediation session. These mediations are generally client-centered mediations.

In client-centered mediation, a professional mediator works with both parties in the same room to help them find their own solutions to the issues raised by divorce or other conflicts. Instead of asserting personal biases or opinions about what a necessary or fair solution is, the client-centered mediator creates a structured environment for the parties so that, once they have agreed to the rules of mediation, it is likely they will achieve resolution. This process is based upon the client’s sense of what is right, what is fair, and what will work for them.

In client-centered mediation, the negotiations follow a path based upon cooperative principles, rather than competitive principles. Client-centered mediation is based on the belief that clients know best and that Utah divorce laws, used as principles of fairness, provide only minimal guidelines and are not always the best way to create mutual, fair settlements. Clients tend to become reasonable and fair when they are given a safe environment in which to communicate and are encouraged to recognize and meet the needs of the other spouse as well as their own. They may start out having very different ideas about fairness, but the process of client-centered mediation motivates them to be more fair with each other than if they were in an adversarial environment.

Client-centered mediation also encourages parties to realize that they can only obtain good results for themselves when they also assist the other to reach fair, just results. This principle of mutual connectedness is at the core of client-centered mediation. It is explained by the mediator in such a way that clients come to understand it is to their advantage to figure out ways to meet the needs of the person with whom they are negotiating. Meeting the needs of the other and achieving fairness is far easier when it is not necessary to spend many thousands of dollars on the transaction cost of adversarial conflict resolution procedures.

The mediator takes a very active role in helping the couple determine future separate financial needs, future separate parenting plans, and future use of property, based on how they intend to divide that property. Client-centered mediation does not use the mediator as a substitute therapist or attorney. The couple will be asked to obtain legal representation and encouraged, if they are financially able, to engage in marriage closure therapy.

Client-centered divorce mediation is respectful of each client and seeks to empower clients to reach agreements that transform their relationship, preserve their integrity, and focus on their best interests. Divorcing parents are empowered to make agreements that take into consideration that they will be parents forever, that preserve the assets of the marriage, and that it is in their best interests to find solutions, rather than fighting continuously about what is right or wrong. In fact, contrary to the vagaries of an adversarial process, in client-centered mediation, couples more easily see that good solutions are those that allow both of them to carry the burdens of divorce somewhat equivalently.

Clients may seek to impress the mediator with their ability to be fair, which creates a desire in the other partner to give this impression as well. This dynamic may begin as face-saving measures by both partners, but can be used by a skilled mediator to create a positive energy or environment for agreement in the mediation room.

Client-centered mediation uses an innovative approach to resolving problems that is healthier, easier for clients to use, and results in lower financial and emotional costs. One of the core principals of client-centered mediation is its future-oriented approach—it asks future-oriented questions that require a mutual effort to answer. For example, when a divorce involves a custody dispute, a standard legal question is, “Who is the better parent based upon their past behavior with the children?” The parent who is found to be better is awarded physical custody (based upon applying a series of best-interest tests—such as which parent was more nurturing in the past, who changed more diapers, or who had more contact in recent months—whereas the less fit parent is labeled a noncustodial visiting parent). This whole process is demeaning to parents and creates more conflict while generating large fees for divorce attorneys who litigate custody disputes

In a client-centered mediation process, the mediator asks the question, “What future parenting plan can both of you agree to so you can have a constructive parenting relationship that best meets your children’s needs, even though you will be living separately?” This question focuses on the future and does not require parents to debate about past behavior or compete for custody. It offers the opportunity for mutual and cooperative discussion and the possibility of achieving their shared goal of joint parenting. Client-centered mediation uses as a tool innovative questions to make it easier for conflicted parties to collaborate and agree to a fair resolution of the conflict.

A client-centered mediator asks mutual, future-focused questions to help people in conflict begin to realize they have shared goals. This tends to change the situation from a contest, in which one person wins and the other loses, to a shared journey of looking for joint answers to shared issues. The questions are designed to encourage a mutual response. The questions asked by an attorney or judge in the legal system are more often related to the contest, rather than future planning. The questions asked by the mediators are just as different from the legal system’s questions as night is from day. A client-centered mediator does not think about different sides; instead the mediator thinks in terms of shared goals. For example, in the typical custody battle, instead of asking for help from psychologists to evaluate and determine who is more fit to have custody of the minor children, the parents in a mediation process can ask a therapist to help them jointly resolve their complaints about the other’s parenting behaviors. In a fence-line dispute between two neighbors that ended in a fight, instead of seeking who is at fault, the client-centered mediator asks, Would you each talk about your perspective of what happened?
In the usual adversarial divorce, clients are often told by their attorneys that the other spouse is not to be trusted, is at fault for things not working, and is to be seen as the enemy.

In client-centered mediation, participants are encouraged to see that they have conflict, not a contest. Contests require winners and losers; conflicts require constructive communication and decision making. Mediators can turn contests into mutually resolved outcomes by offering an environment that encourages cooperation. By influencing the communication patterns, the attitudes, and the bargaining process, the mediator can change the battle from a contest into a journey that helps participants achieve their shared goals. As any contest is a tug of war between two or more sides, mediation is a conversation that results in changed people.
In client-centered mediation, the mediator will ask clients to identify shared goals. If they have been in intense and bitter conflict for some period of time, the mediator may need to ask a series of small questions that leads them toward a realization of shared goals. In divorce mediation with parents who have minor children, the client-centered mediator asks, “Is it important that the children have a meaningful relationship with each of you?” which is usually answered affirmatively. The mediator can also ask a leading question such as “Bob, you aren’t trying to terminate her parental rights are you?” Bob will never answer this question in the affirmative.

This is another small positive building block because Bob acknowledges the importance of the goal of shared parenting.

Similarly, a couple might be locked in battle over the issue of spousal support. Instead of blaming one spouse for this problem, the client-centered mediator helps them identify shared goals by asking if they both agree that one of them is partially or completely dependent upon the marriage relationship for their support. If they agree to this, the mediator then asks them if they are interested in building a plan that allows the more dependent spouse to gain an increased measure of financial self-sufficiency. Some couples wish to unhook completely. If this is the case, the mediator will help them look at options such as lump-sum buyouts of the spousal support obligation. Once they realize they have the shared goals of each helping to solve the problems of less money and more expenses after a divorce, most adopt a standard of fairness calling for each of them to share some of the burdens of the divorce.

This peaceful resolution by the parties is in sharp contrast to what happens if the case goes to court. There, attorneys may argue that one caused the problem by asking the other to stay home and not work, or the attorney may charge that one spouse is lazy and unwilling to work or that the higher-income spouse is lying about income, or if the spouse was telling the truth, accuses the spouse of not wishing to be fair about support.

New-thinking processes ask questions in a very different fashion. As pointed out earlier in custody mediation, for example, the new question is, “What are the future parenting arrangements the two of you can agree to that allow each of you to build a parenting plan that will work best for you and the children in the future?” This question does not encourage participants to engage in a battle over who is the better or worse parent. The client-centered question moves the parents into a new way of thinking about their future relationship with the children and with each other. Unfortunately, this is not the type of question asked by the family courts in most states.

Old-thinking law-focused approaches use the same old adversarial questions and try to find a settlement in the context of a battle. New thinking changes the entire game that is being played so that participants in conflict can create their own solutions. There are many other strategies that client-centered mediators use to help people in conflict.
The client-centered mediator influences the participants’ communication by encouraging the use of nonlegal, positive words that focus on the practical parenting tasks at hand rather than negatively loaded legal words, allowing them to work together more easily. Client-centered divorce mediators, for example, do not use words like custody and visitation because those words are generally used to create a lower-level visitor parent and a higher-level primary parent. Determining custody in such a way serves the courts’ need to attach labels more than it serves the parents or needs of the children. When finding one parent more fit to have custody, the court must award certain perks, such as the house, child support, more parenting time or authority over the children at the expense of the other parent. Words are important. In client-centered divorce mediation, parents are simply called parents. The mediator asks participants to set a goal of creating a parenting plan for the future that allows both of them to be the kind of parents they wish to be, even though the children may spend more time at one house than the other or one parent may have more responsibility in certain areas than the other. By changing the labels from custody to parenting, and by asking a different question, the mediator helps participants in conflict over their children see that they have shared goals in building a future parenting arrangement as opposed to having a contest over who has been most unfit in the past in order to obtain the status of primary or custodial parent.

Open and Honest Communication

In client-centered mediation, there is no need to engage in the type of deceptive and dishonest communication that so often occurs in the adversarial game of trying to catch the opponent in a misstatement or admission. Open and honest communication is more likely when the mediator changes the game being played, thereby eliminating the chance that participants’ words and statements could be used against them if the conflict later ends up in court. By establishing strict confidentiality of the discussions, the mediator can assure participants that their words and statements will not be used against them if mediation reaches impasse. When a person does not have to worry about their words being taken out of context or used against them later in a competitive battle, they are more likely to speak freely, openly, and honestly.

Persuasive versus Threatening Communication

Anyone who has ever been the subject of a threat knows how upsetting it can be. Most recipients of threats dig their heels in and fight back. A threat is a type of communication pattern that often contains an if-then sequence resulting in a negative consequence for the recipient if they don’t act or refrain from some act. Such coercive patterns tend to shut communication down and make it difficult to proceed with the mediation. A client-centered mediator will actively manage the sessions in such a way that coercive and threatening communication seldom occurs. The mediator accomplishes this goal by using one or several of the following three techniques:

• If a threat is made, the mediator intervenes and asks the recipient of the threat to describe whether or not the statement feels threatening. If the recipient says yes, the mediator asks the originator of the threat to speak persuasively rather than coercively. The mediator could begin a discussion of how threats are really assertions that something bad will happen, and that it is possible to be persuasive by making an assertion that something good will happen as a result of requested behaviors or actions taking place. For example, a parent might say, “If you allow me to have more time with the children, I will be more willing to pay for extra child expenses.” The mediator has given the originator of the threat an opportunity to restate the threat as a need or concern.

• The mediator also tries to eliminate the need for people to make threats by assuring participants that their worst fears will not come true. People who use threatening communication generally feel as though they are up against the wall without any power or options. By assuring people that bad things will not happen to them, the mediator can reduce their need to make threats against each other. For example, client-centered divorce mediators might say, “Bill, are you able to say to Susan that you will not try to harm her relationship with the children and will not try to take the children away from her?” or “Susan, are you able to assure Bill that you will not try to do anything to interfere with his relationship with the children and will not try to take the children from him?”

• The mediator also tries to probe underneath the threatening statement to see whether it is possible to resolve the underlying need that motivated the threat. Suppose a person in the room says, “If you don’t back off from your outrageous demands for support, then maybe it would be better if I had the kids and you paid me to take care of them.” This usually indicates that the person making the threat is uncomfortable with the discussion about how the responsibility for sharing the costs of raising the children will be decided. By returning to a discussion about the child support, the mediator can usually help the person eliminate the need to make this threat. The mediator might respond with, “Bob, it sounds like you believe the child support amounts discussed so far are unfair.”

Discouraging Blame and Fault Finding

Perhaps the most destructive aspect of the adversarial system is its constant focus on blame and fault. Blaming and fault-finding statements are critical to the success of an adversarial process where the goal is to show that the other party is at fault, unfit, or not entitled to something they want. When a mediator is attempting to create a cooperative environment, it is essential that the mediator assist people to communicate without the contaminating impact of blame and fault. In most cases, such blaming and fault finding only serve to create a toxic environment in which little can be accomplished. Indeed, if the mediator is not able to move the discussions from blame and fault, clients will usually not return to mediation.

A focus on the future more easily moves people away from blame and fault. All blame and fault finding focus on some event that happened in the past. Such statements declare that something bad happened in the past and it was the other person’s fault. Blame and fault-finding statements are essentially of no use to a cooperative process, unless they are acknowledged by participants and they choose to move beyond them. Instead of asking participants to deny history, a mediator offers a future focus so they can make decisions that will keep the past mistakes from reoccurring.
When the mediator asks a future-oriented mutual question, participants find it easier to work through the difficult task of being two parents living in different houses.

Asking the participants if they will agree to a communication ground rule – This ground rule suggests that whenever either party makes a blaming or fault-finding statement, they agree to follow such complaints with a positive, constructive statement about what must be done differently in the future to prevent their complaint from occurring again. Frequently, a mediator will say to a participant, “I understand you are concerned about what happened in the past, what do you want to be done differently in the future so the complaint goes away?”

Discouraging participants from shifting responsibility for some problem – Blame and fault statements say, “I am not responsible for the mess we are in, you are!” Instead, the mediator seizes the blame or fault statement as an opportunity for the participants to discuss future responsibilities to resolve what underlies the blaming statement.

Skilled client-centered mediators help participants change their attitudes, thereby making it more likely that they will achieve a cooperative outcome. Client-centered mediators intervene to influence people’s thinking so that new thinking will occur. These interventions on the part of the mediator are not meant to be directive or controlling; they are meant to help generate the creative thinking process. Rebuilding some trust through making and following small agreements requires a great deal of attention because of issues of power and control between the two parties. For example, mediation assists participants who have experienced nonreciprocal abuse in their marriages by encouraging each party to become more assertive, not aggressive, in the controlled environment of the mediation room. The client-centered mediator is trained to screen for and recognize abuse signals when working with divorcing clients. By being nonjudgmental yet serious about abuse, the mediator will offer special protocols for participants to follow in order to keep the mediation room a safe environment. When they follow through on these protocols, they begin to rebuild the trust that will be necessary for them to operate as parents after the divorce.

Creating Mutual Attitudes

For parties who have children, helping them to see that they are connected as parents is very important in creating a mutual attitude. However, even participants in mediation who do not have children or those who will not be exchanging spousal support find that they are connected to each other and that it is necessary for them to cooperate in order to get through the unsettling process of divorce.

A mutual attitude means that both parties can better achieve their goals of being treated fairly if each treats the other fairly. A mutual attitude does not encourage one or the other to try to win or lose. Most importantly, a mutual attitude links people in such a way that they either sink together or they swim together. This mutual attitude is achieved in the following three ways:

• At an initial mediation consultation, clients will be encouraged to negotiate in very different ways than they would in the adversarial court system. The mediator suggests that they not turn each issue into a contest, but, instead, look at each issue as requiring joint decision making.

• Mediators point out how people are connected. There are many opportunities within a mediation session to point out instances in which each may get what he or she needs only when they also help the other obtain their needs. For example, one parent will have difficulty being a parent if the other constantly attempts to turn the children against them by making negative remarks about that parent. The divorce mediator may suggest that negative comments about the other parent may come back to haunt the parent making such statements.

• As pointed out earlier, different questions are also useful in the task of creating a mutual attitude.

Being Future Focused

When conflict is managed competitively, the parties look to past events for answers based on who was right and who was wrong. The goal is often to determine who is entitled to some benefit or who is at fault. This wastes an enormous amount of time and is one of the greatest drawbacks of an adversarial system of conflict resolution. Client-centered mediators create a future focus when establishing a cooperative setting. This is accomplished in the following two ways:

• Unlike the traditional labor-mediation process, the client-centered mediator does not ask for an opening statement. Formal opening statements tend to exaggerate the pain of the past or are used to stake out extreme positional demands. In a client-centered process, the past is not rehashed in order to determine who caused the problems, it is only mentioned as much as is necessary to allow people to let go of the past or to help them determine what must be done differently to make the future more acceptable. People focus on the past when they are asked to make opening statements. If they are, instead, asked to tell their story, without making positional demands, their view of the past can be acknowledged by the mediator and they become more hopeful that things can be better in the future.

• Questions about future goals offer clients an opportunity to talk about those goals. Questions about the past focus people on the past. More often than not, it is the past wrongs and past harm that people want to focus on. However, when the mediator asks people to build new agreements about their relationship in the future, it becomes easier to continue talking about the future. Client-centered mediators ask questions in such a way that the future goals can become linked. This future focus has positive results for the mediator offering a cooperative environment for participants. A past focus tends to create disputes about whose version of the past is correct, whereas centering the discussion around the future will help people let go of the past as they concentrate on building a new future.

Mediators do not balance power, but they help clients create a better use for their power. Unlike a competitive system of conflict resolution based on score keeping, evaluating, and winning, a client-centered mediation process uses new thinking that says keeping score is not at all necessary. Although it is not necessary to determine who has more power, it is necessary to help both of them tap into the innate power they already possess. When participants are able to do this, they become more confident when addressing and planning for the future. This is what is meant by writers who emphasize empowerment or who define mediation as a self-empowering process. Client-centered mediators do not assess who has more power; instead, they are sensitive to the common misuses of power. They are intent on providing both people with new understandings by helping them become empowered.

Thinking Positively

Most people get divorced to make things better, not worse. However, when they employ a mediator, they are at an impasse because they are unable to make agreements by themselves. They are hopeful that the mediator will help them build a settlement agreement, but they also have doubts. Learning to think positively helps them overcome these doubts. In any serious conflict, people who consider mediation are frustrated and most likely at the end of their tolerance level. Their negative attitudes become magnified by their constant fixation on the harm they perceive that has occurred to them and to their dreams. They are usually skeptical of any process that tells them they will have to solve it themselves. In order to create the environment for even choosing mediation, most mediators will conduct a brief initial consultation about the process.

Bargaining from Interests

Client-centered mediators influence the way clients bargain and negotiate with each other.

A father sits in the mediation room pounding the table and demanding that the mediator acknowledge his legal right to have custody of the minor children. He wants physical custody because his lawyer has told him this is the highest level of parenthood he can achieve without being declared a saint. He wants to be the best parent he can be and fears losing the children. He is now bargaining about his position that he should have custody. Positional bargaining is based on the concept of winning and losing. Father wants to win custody and it means the mother of his children will lose custody. On the other hand, if the mother wins this battle, he will lose custody. This is the classic contest played out in divorces with minor children. The mediator can point out that it is possible to view custody from a different perspective. Underlying his position is an interest that he be allowed to continue to be significantly involved in his children’s lives. It is assumed that the mother also has this same interest. Interests can be met in hundreds of different ways. Positions can only be met in one way, that is, either you win custody or you lose custody. If his interest in remaining a significantly involved parent is raised, that is what the mediator will focus on. This is what is meant by interest-based bargaining. Mediators believe that if mutually shared interests can be found, every conflict can be resolved fairly for both sides.

Most divorcing couples exposed to the concept of building parenting plans choose not to engage in a contest over which parent is most unfit. They opt to build parenting plans because common sense tells them it is better to cooperate about parenting their children than to fight about who should be awarded custody. Those who say participants should not work from their standards of fairness frequently are those who are skeptical of any possibility of cooperation or are still interested in keeping score. They might say, “Well, how are you going to judge which parenting plan is better if they have a fight over it?” Or, they will say, “It won’t work because people cannot be taught to cooperate.” Resistance to new thinking most often comes from those who have great difficulty accepting any other concept of fairness other than that which is designed by the legislature and ordained by the courts.

Participants find that in mediation they design fairness standards that serve them better than those dictated by state law.

 

 

Divorce mediation begins with an initial informational meeting held with clients to discuss mediation and how it works. If the couple chooses to proceed with mediation, they receive information necessary to begin mediation and are given financial forms to complete along with other information on how to be best prepared for the first working session. Although different mediation settlements require more time than others to achieve, 3 to 12 two-hour sessions is the average range of time needed to mediate most divorces. At the end of the mediation process, the couple receives a memorandum of their decisions and other documents necessary for the legal divorce to be concluded. They take the memorandum to their attorneys to have it converted into the settlement document for their signatures.

The initial consultation is a face-to-face meeting between the couple and the mediator that usually lasts about an hour. Prior to beginning the consultation, the husband and wife each completes an intake questionnaire. The questionnaire contains some background questions about them, their addresses, phone numbers, work status and position, marriage date, separation date, names and ages of children, whether or not they have been in counseling, names of attorneys, and each person’s area of greatest concern about the divorce. The intake questionnaire includes a self-report, about the level of domestic abuse present in the marriage relationship, which is completed separately by each spouse to be shown only to the mediator and never shared with the other spouse. This information is reviewed by the mediator before seeing the clients. If the information raises questions for the mediator about violence or abusive dynamics in their relationship, the mediator may choose to meet with them separately to discuss past abuse and safety issues. If the information does not indicate a history of physical or verbal abuse, the mediator will begin by seeing them together after reading their intake forms.

It is standard practice for mediators to talk about their credentials, experience, and personal approach to divorce mediation at this first meeting and to invite any questions about the mediator’s background, competence, or potential conflicts of interest. The mediator will provide a general explanation of mediation and describe how it works in divorce. The mediator also explains the difference between mediation and the adversarial process as applied to the three major areas of decision making in the divorce: parenting children, financial support, and division of marital assets and liabilities. By emphasizing the clients’ connectedness and mutual needs, the mediator demonstrates that the couple is not limited to the adversarial approach. Because mediation is conducted in private between the mediator and the couple, it is governed by a contract between the three of them.

The mediator is in charge of managing the sessions in accordance with the clients’ needs and goals. Together with the clients, the mediator discusses which issues to begin with and how to proceed. The mediator often asks clients to establish some agreements about their communication in the mediation room, such as not allowing name calling, speaking one at a time without interrupting the other, keeping voices calm, and listening respectfully to each other. These informal rules are offered as they are needed during the process rather than laid out by the mediator in advance. When clients make an agreement about a rule, they will then be more likely to comply with it. In addition, the mediator models cooperative behaviors, such as speaking with a soft voice, giving each equivalent eye contact and attention, apologizing for making a mistake, not holding one’s shortcomings against them, and respectfully addressing each of them. These are all ways that the mediator keeps order and emotional safety in the mediation room. The mediator is aware that the clients may have had trouble communicating recently and is always prepared to address these problems openly, honestly, and with positive regard for each client. At the end of each session, the mediator summarizes what has been accomplished, what needs to be accomplished next, and what each needs to do to be prepared for the next session. The mediator also sends each client a memo of these items to help them prepare for the next session. This provides continuity for the mediation process.

Think of a mediator as someone who is invited into the intense conflict of couples during one of the most difficult times of their lives— their divorce. Couples choosing mediation are seeking the assistance of a neutral person to help them make sense out of the chaos of the marriage breakdown. They are distraught, fearful, angry, and hopeful, all at the same time. The countless coping books about divorce describe the normal dysfunction that divorce brings to each person. Deep hurt, pain, and fear accompany the feelings of loss. Husbands and wives experience a tearing of their core being and have only the other to fault for the misery they are experiencing. The mediator, aware of the depth of the conflict and pain of divorce, never takes sides, but strives to help them arrive at a place where they can begin to build new lives without erasing the past. Is the mediator a miracle worker? Not really. The mediator’s task is to transport them from their chaos to a higher level of functioning where they can begin to work together to create the best outcome possible to close their marriage with dignity and care. Often, it begins with small manageable agreements that have a high likelihood of success. With some couples, it may only be possible to point out the fact that for the very first time in a long time, they have been able to agree upon something, even if that something is as small as agreeing to begin mediation.

Connecting Emotionally With Clients

Rapport building or connecting with the soul of each client sets the stage for mediation to occur. Mediators may have difficulty connecting with a client who is very guarded and refuses to trust anyone, much less a mediator. When this person presents himself in mediation, the challenge is to find a way into the heart of this hurting person. Sometimes, the way to do this seems too obvious. Asking the person to talk about what has happened is a way to learn what has gotten them to a place where there is only anger and no communication or other constructive interaction. In therapeutic terms this is called meeting the person where they are. When that is done, the person usually begins slowly and guardedly to pour out their feelings. Sometimes there will be angry feelings, and a mediator must learn not to shrink from a client’s anger but to view it as an opportunity to connect with the soul.

When a mediator achieves and maintains this connection, the husband and wife are more likely to be able to express themselves constructively. Once there is rapport between the mediator and each client, the clients begin to see each other differently because they have chosen to function at a higher level than the angry conflict of the marriage breakdown.

Managing The Mediation Process

A mediator operates on several levels simultaneously. The mediator needs to connect with each person, while at the same time accomplishing the practical task of identifying the issues that need to be addressed in order for the divorce to occur. Once a couple and the mediator have attained a comfort with each other and have a good working relationship, they begin to work together on the issues of the divorce. Couples will share the goal of reaching a fair settlement, assisted by the mediator in achieving that goal.

Addressing Divorce Issues

The mediator next helps them explore the broad topics, breaks them down into manageable components, and then assists them in gathering the information necessary to build options. The mediator also provides order to the discussion of each issue that is referred to as the decision-making process, which we suggest is only one aspect of the role of the mediator. The order of the decision-making process of each issue is as follows:

• Identify the issue.

• Create an understanding of the issue. (This is accomplished through education and information provided by both the mediator, the clients, and sometimes by neutral experts.)

• For each property issue, place an actual value on the item, and discuss the value of each item.

• Consider options for decision making about each issue.

• Analyze the consequences of the options for each spouse and for their children.

• Discuss their standard of fairness about each issue.

• Make a decision based on their standard of fairness.

• Draft and review each agreement.

• Submit their agreements for review, drafting, and implementation by their attorneys.

This is the skeleton outline of the decision-making process for the couple. The mediator assists the couple in building the content of each step by discussing the issues in the context of their history, conflict, children, and all that they have built together to this point. The task here is to put meaning on all the issues needed for each of them to build separate futures.

Asking appropriate questions is paramount to competent mediation. Although the mediator works with a couple through each issue in a divorce, the mediator is also modeling basic communication skills of listening, clarifying, questioning, reframing, and empathizing. The most important skills center on asking questions. This technique opens conversation, creates possibilities, and offers opportunities. Asking questions correctly opens the discussion and provides couples the opportunity to go beyond their old ways of thinking about a particular topic.

Unexpected comments made by the mediator are not for the purpose of surprise, but to uncover the underlying conflicts that drive destructive behavior. When this happens, the mediator may offer several ideas about how the clients can begin to resolve these underlying conflicts. In divorce a frequent suggestion is for them to consider how they might begin letting go of what they hold against each other. Usually the conflict is associated with some unresolved hurt and pain related to the marriage breakdown and decision to divorce. When this is the case, the mediator may suggest that they enter marriage-closure therapy together, so they have the opportunity to analyze how their marriage relationship ended in divorce. This is not a process for them to re-evaluate the divorce decision or to consider reconciliation. It is meant to help them understand what happened, to recall and appreciate the positives of their marriage relationship, and to begin to let go and forgive each other for what they hold against the other. As we all know, forgiveness frees the forgiver and changes how the forgiver perceives the other.

If forgiveness is mutual, both will be rewarded by a significant improvement in their relationship as parents.

 

 

Divorce mediators need to be clear with themselves and with their clients that they are comfortable mediating divorces. Mediators need to demonstrate respect for the decision to divorce, no matter what they believe about the propriety of divorce. It is normal for people considering divorce to experience a period of deep ambivalence about whether to end the marriage. The decision to divorce or not belongs to the clients. It is inappropriate for a mediator to persuade people to stay married or to pursue a divorce. Because all nofault jurisdictions allow a spouse to divorce over the objection of the other, the mediator may appear to favor the spouse wanting the divorce when the mediator explains the choices available to the person opposed to the divorce. Even though Sonja did not want the divorce, it is important for her to become fully informed about the choices she has, because the divorce may proceed against her wishes. If you struggle with your own dislike of divorce, it may be helpful to view mediation as a service that assists divorcing couples to make things better for themselves and their children.

Because most couples who begin a divorce process do eventually divorce, concentrating on what mediation can offer them is a better way to proceed with their divorce and their decision making. One great value of divorce mediation is its acceptance of a couple’s choices. It helps them create their own best outcomes. The mediator who is able to set aside personal biases benefits the clients by assisting them to make things better, not worse. A mediator actively engages in the discussions, building rapport, listening carefully, asking questions, clarifying statements, and creating understanding between a husband and wife who may have had little success understanding each other at least in the recent past, if not for quite some time. The mediator listens and watches for opportunities for one to understand the other better or to acknowledge the other’s thoughts, ideas, and feelings.

All disputes present some level of power imbalance between the people in conflict. In mediation, that power imbalance is defined by the parties and their perceptions. A divorcing mother often sees the father as powerful because he controls the income. The father, on the other hand, sees the mother as powerful because she has cared for the children and knows how to meet their needs. Each perceives the other as having had more power in certain aspects of their married lives. This scenario is very common in divorces. The mediator’s role is to help people use their power for mutual enhancement rather than trying to balance power or determine who has more power.

Power arises out of relationship. Power may be one person acting in such a way as to gain unfair advantage over the other. Power is frequently played out verbally in discussion, psychologically in attitude, or actively in behavior. Sometimes it is very apparent. At other times, it is subtle. Sometimes it is intentional, sometimes people do not realize their own power. Silence, for example, may be experienced as a use of power that just frustrates the other, though it may not be intentional. A verbal request voiced with great emotion may be perceived as a use of power to either emphasize a point or to intimidate.

The problem with power balancing is that it assumes the mediator can accurately evaluate who has how much power when, in fact, power is often defined by perception. When one speaks with a loud voice, for example, the other may feel intimidated, but the speaker may simply be hard of hearing and speaks loudly to be sure the other person hears what is said. When one speaks intensely and with deep conviction, the other may perceive it as a powerful demand.

Dealing with power is especially difficult when parties have had a long relationship and know each other intimately. In these cases, the clients carry into mediation the power strategies that made each other feel uncomfortable in the relationship. One’s facial expression may devastate the other, and the mediator might be oblivious to what happened that made that person so upset. Each person has subtle ways of pushing the other’s buttons that are not readily apparent to the mediator. At any given point in a mediation, one spouse may have more power than the other. Each person demonstrates power at different times and in different ways. The question is how each person uses that power. It is the mediator’s responsibility to learn how to recognize and deal with expressions of power. Power carries no threat, even when one has always controlled all financial resources, because in mediation there is an agreement to share the resources and provide documents to verify them. However, if one person misuses power, it may be an indication of reluctance to share information and income, thereby halting the mediation process.

Misuse of power is often based on a need or a fear. When one person misuses power and threatens the other, the mediator first needs to attend to each person’s emotional safety.

The role of the mediator is to facilitate conversation, discussion, and communication. Although the role may sound simple, it is in fact very complex. A mediator is called upon to facilitate an outcome agreeable to all involved.

You Need A Divorce Lawyer in Utah

An experienced Midvale Utah divorce lawyer can assist you with your divorce mediation. If your divorce mediation results in a settlement, don’t sign the settlement agreement without having an experienced Midvale Utah divorce lawyer review the same for you. Not all divorce mediations end in a settlement. Often the couples are unable to agree on the different issues. In case your divorce mediation does not result in a settlement, you will have to fight it out in the court.

Midvale Utah Divorce Attorney Free Consultation

When you need to file for divorce in Utah, file for paternity, child support, child custody, adoption, guardianship or need some help with family law, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.

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