Bringing Informed Consent and Consumerism Into Mediation: Have Parties Jointly Select Their Lawyers

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by Forrest S. Mosten

First published on Mediate.com

Lawyers can play a vital role in the success of mediation. Guiding their clients inside and outside joint mediation session and serving as allies to the neutral mediator, the importance of effective lawyering in mediation cannot be overstated.

Many mediation parties have already selected their lawyers before a mediation is engaged. In many models of mediation, lawyers actually select the mediator for their clients without the parties ever meeting the mediator beforehand.

However, most mediation participants enter the process without lawyers. Many people select mediation to avoid lawyers; others may want the limited help of a consulting lawyer but do not believe such professional help is affordable, particularly when added to the fees of a mediator.

I have addressed the importance of consulting lawyers elsewhere.¹ This article will address a new protocol that I have used successfully in my mediations to involve parties to select consulting lawyers jointly when an agreement has been reached to include lawyers in the mediation process.

First, let us briefly look at the options to joint party selection. The typical method is for parties to separately decide that a lawyer would be helpful and each of them conduct their search, make their selection, and either the party or lawyer introduces the lawyer into the mediation process. There are generally no agreed criteria for background, approach or cost of the lawyers. The clients (and mediator) play the cards that are dealt. Some lawyers selected by the parties truly help the process; others, less so. The lack of thoughtful reflection about attorney selection is in part responsible for the negative attitude toward lawyers held by many mediators.

Another approach is to discuss the use of lawyers within the mediation process with possible agreements made to guide the selection. Often, mediators will provide information about the difference between “mediation- friendly” lawyers and those lawyers who are essentially litigators who participate in mediation in an adversarial based model. Other litigators play a passive role or absent themselves from their clients mediation experience essentially leaving clients to fend for themselves. Neither domination or absence by lawyers sufficiently help their clients participate successfully in mediation.

Another approach is for the mediator to facilitate a discussion as to what criteria for consulting lawyers the parties can mutually agree to use in their selection. For example, lawyers who have themselves taken family mediation training (or better yet, a full 40 hour course) may better understand how to work the mediation process on behalf of their clients and the entire process. Another source of effective and supporting consulting lawyers are local Collaborative Practice Groups. Almost every community hosts groups of trained Collaborative lawyers who are committed to and support mediation and are trained to be excellent collaborative lawyers.²

Building on a party agreement to use “mediation-friendly” lawyers, many parties are very open to working with lawyers with whom the mediator has worked successfully in the past. If parties want to interview and select their lawyers outside of mediation, they could request the mediator to provide a list of consulting lawyers and supporting background information on each lawyer. This mediator intervention can facilitate the search for clients as trying to navigate a long list can be frustrating.³

There are several ways mediators can provide recommended lawyers:

1. Separate lists for each party;
2. One list and have parties divide it up;
3. Parties can agree to have one of them use the mediator’s list and the other party can then interview and engage all those lawyers not selected by party #1

The protocol unveiled in this article is to have the parties partner with the mediator in lawyer selection. The essence is that parties together interview lawyers recommended by the mediator in a mediation session and then select the two lawyers and which lawyer will represent each spouse. Not only do parties approve of this protocol (often selecting a mediator who will offer it) but most lawyers report a favorable response to be requested to meet directly with both parties as a new method of being engaged to work in mediations.⁴

There are several reasons that clients and lawyers like this protocol:

1. While written resumes and bios provide useful information about the training and experience of potential lawyers, none of these resources replace face to face discussion. Clients appreciate the opportunity to assess eye contact, interest and passion for the work, listening ability, and the way that potential lawyer candidates answer client questions and concerns during the interview. The online experience can be personal and by comparing the way 3 or 4 lawyer candidates respond to similar questions, clients seem to have a much better sense of comparison to help their selection.
2. Lawyers find that online interviews give them the opportunity to meet both clients with a minimum of time investment. Little or no preparation is required and the time commitment rarely totals over 30 minutes for emails with the mediator and the interview itself. I have never had a lawyer unwilling to donate this time without a fee given the lawyer’s opportunity to be hired for a paying assignment;
3. By having a joint interview, the clients increase their opportunity for having two lawyers that they feel will contribute positively to the mediation experience. Also, it helps minimize common antipathy toward the other party’s lawyer. If Linda’s lawyer makes a request or demand of John, while John may not be thrilled with the request or demand, since John selected Mary’s lawyer with her, John will be less likely to blame Mary’s lawyer personally or assume that the lawyer has a personal bias against him.⁵

Steps in Protocol of Joint Party Selection of Lawyer in Mediation

1. Parties agree that they want mediator to recommend consulting lawyer candidates.
2. Parties agree that they want mediator to convene the lawyer selection process.
3. Mediator contacts by email 4-6 lawyers whom she believes would be appropriate for the parties to ascertain interest, availability and set date and time for the interview. The mediator sends lawyers the suggested protocol for their review.
4. If the parties have agreed the potential lawyers must sign litigation disqualification clauses if the mediation terminates, the mediator sends a copy of the Consulting Lawyer Litigation Disqualification Agreement for review and approval.⁶
5. 3-4 lawyers are booked in 10-15 online interview sessions to conclude interviewing process in an hour of mediation time.
6. Once lawyers confirm, mediator provides parties with an interview schedule, lawyer bios, and sample questions that they may use as examples.
7. Interviews are conducted online with mediator introducing each lawyer to parties, the lawyer providing a short overview of her practice, and the parties and mediator asking questions of lawyer. Parties alternate in asking questions. Fees are always part of the discussion.
8. After all interviews, parties and mediators discuss the strengths and weaknesses of each lawyer. Parties will select two lawyers and determine which lawyer will represent each party. If both parties want the same lawyer, mediator will attempt to resolve issue or another lawyer is selected.
9. Mediator contacts lawyers selected requesting their engagement letters be sent to parties.
10. Mediator contacts lawyers not selected thanking them for their time and contribution to the parties.

1. See Mosten, Scully and Traum, Effectively Representing Clients in Family Mediation (ABA 2023); Mosten and Scully, Representing Clients Successfully in Family Mediation Association of Family Legal Specialist Newsletter (Summer, 2016).

2. See www.CollaborativePractice.com and utilize CONNECT Tab to find Collaborative Practice groups worldwide.

3. If these lawyers are “repeat players” (use the same mediator many times), issues of disclosure and vigilance may come into play. See Upchurch, www.uww-adr.com/blog and Pychon, Mediate.com; and Lande, www.law.missouri.edu.

4. See comments of experienced family lawyer in Los Angeles, Jeff Jacobson, who describes his experience to being interviewed by parties jointly and ultimately engaged by one party: Mosten, Scully and Traum, Effectively Representing Clients in Family Mediation, Chapter 6, Representing Clients in Mediation with a Collaborative Lawyering Approach, p 96.

5. At a recent wedding reception, the conversation somehow evolved to guests’ experiences with their ex-spouse’s divorce attorneys. It seemed that these experiences were universally negative. When a guest asked me about a particular lawyer and I responded that I found him to be a superb lawyer and person, I was greeted with disgust and disbelief!!!! The villication of the other spouse’s family lawyer unfortunately is a common theme in our society today.

6. The Attorney Disqualification Agreement is the key element of Collaborative Law. It is designed to protect the “safe container” of the Collaborative Process” and protect parties from ever facing the other party’s lawyer in court should the Collaborative Process terminate. The same goals are applicable for the Mediation Process. See Mosten, Scully and Traum supra, pp 96-103.

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