Source/Author/Copyright: Mark Baer, Family Law Attorney-Mediator
In the chapter titled "Paternalism, Power, and Respect in Lawyer-Client Relations" in Handbook of Justice Research in Law, W. L. Felstiner explains how and why lawyer paternalism leads to unsatisfactory results and dissatisfied clients. Paternalism occurs "when people in authority think or act in a way which results in them making decisions for other people which are often to their advantage but which prevent those people from taking responsibility for their own lives." In any event, Felstiner explains that due to their emotional state, family law clients are often unable to make informed and competent decisions. The "temporary incompetence" of clients due to their emotional state and the attorneys' paternalistic attitude toward clients create a lack of understanding on the part of both the attorney and the client. This is the legal equivalent of a ship that hits rocks, runs aground, veers off course, and possibly sinks.
By way of example, allow me to share an experience I had a couple of years ago, while mediating a divorce case. The couple consulted with me about the possibility of my mediating their divorce. During the consultation, I described the process, my approach and answered any questions they had. I explained that generally speaking, my approach to mediation is a needs and interests based approach, whereas litigation is legal rights and obligations oriented. The couple liked me and my approach and retained me as their mediator. Since they had no children, the legal issues involved spousal support, division of property and allocation of the mediation costs and attorneys' fees, if any. I provided them each with an Income and Expense Declaration and Schedule of Assets and Debts to complete, a link to instructional videos on a court website to assist them in properly completing those documents, disclosure tips, and information on what must be disclosed. They had no immediately pressing issues and therefore we decided not to start the mediation until they had completed those forms.
We commenced mediation shortly thereafter and neither of them was represented by counsel in the mediation sessions themselves. As soon as the wife stepped into the mediation room, she told us that she wanted to share with us what she had told her attorney, so that everyone would be on the same page. She then said that at her suggestion, she and her husband had entered into a premarital agreement. They had downloaded the agreement off the internet and no lawyers were involved. The premarital agreement provided that no community property would be created during the course of the marriage, but it did not address the issue of spousal support at all. She told us that it was her understanding that the premarital agreement was not legally binding. However, she said that as she had told her attorney, as long as she received enough spousal support to meet her needs for a sufficient period of time, she was happy to comply with the spirit of the premarital agreement.
After learning this information, I thanked her for being so transparent and authentic with us. I then asked the parties if they wanted to start by focusing on the issue of spousal support, since that might resolve the entire case. They agreed and the mediation began.
I suggested that we begin by evaluating their respective incomes. We started with the husband. We examined the income he listed on his Income and Expense Declaration, proof of all such income over the preceding three months, and his various tax returns filed over the prior two years. We went item by item and I asked his wife to ask him any questions she may have regarding any given item or the supporting documentation. She was also instructed that if she wanted any additional documentation, she should make sure to request it. Her husband answered each question to her satisfaction and agreed to provide her with copies of all of his financial statements over the past year.
We then began examining wife's income in the very same manner. Wife had a graduate degree and had started her own business, which was a major source of conflict in their marriage because she was only earning approximately $218.00 per month after business expenses. In any event, she answered all of her husband's questions and he agreed with her stated income.
Before concluding our first mediation session, we began reviewing wife's anticipated expenses. I told husband that if he felt that an expense in any given category was either too high or too low, he should speak up and explain the reasoning behind his opinion. I also explained that once they agreed on wife's anticipated expenses, she would need enough money (after tax) to meet those expenses and that they should add an additional agreed upon percentage for unanticipated expenses. We didn't get very far before calling it a day, but a sticking point that they needed to look into before our next session was wife's anticipated rental expense.
They continued working together before our next session and were able to resolve a number of issues outside of the mediation. When they returned for their second session, husband provided wife with copies of the documents she requested. Wife went through the documents and asked husband any questions she had regarding those documents and he answered all of those questions to her satisfaction. We then returned to our analysis of wife's expenses. Before the conclusion of the session, they had agreed upon wife's anticipated monthly expenses, including the additional percentage. Nevertheless, they had not agreed upon the support amount before the second session ended.
Meanwhile, over the next several days, they reached an agreement on their own and informed me of the terms. They agreed upon a monthly amount, the number of years it would be paid, that it would be paid in one lump sum upfront, and that it would be fashioned in a manner that wouldn't be taxable. I should point out that the fact that it was being paid tax free and in one lump sum did not impact the amount paid. The one-time payment was calculated by multiplying the monthly amount by the agreed upon term of the support.
However, about a day or two later, wife called to tell me that she had changed her mind. She said that after reviewing the terms of the settlement, her attorney said, "I'm glad that you resolved the spousal support issue, but what about the division of property?" The wife said that she wanted to return to mediation and that she wanted her attorney present from that point forward. In response, I said that as the mediator, I had no vested interest in the agreement and that I was happy to reconvene the mediation sessions and that her attorney was more than welcome to participate. I also pointed out that she and her husband had hired me to handle a needs and interests based mediation and that she was now wanting to resolve the case on a legal rights and obligations basis. Under those circumstances, I told her that it was possible that her husband would not even agree to return to the mediation. I reminded her that we never addressed the issue of community property and that the spousal support was calculated very differently than it would have been under a rights and obligations basis. I said that comparing the two approaches is like comparing apples and oranges. If community property were considered and spousal support were resolved from a more legal approach, the outcome would be very different and that it was impossible to know at that point whether she would be better off, worse off or in a similar position by utilizing a traditional legal approach. I ended our conversation by telling her that I had just completed drafting the paternalism section of an article I was writing for a presentation I would be giving at the American Bar Association Section of Family Law 2013 Spring CLE Conference. I told her what paternalism meant and asked her whether her decision to reject the agreement and start over again was based upon her needs, interests, values and goals, or those of her attorney. She then asked me if I would email her the material I had written on lawyer paternalism, which I did.
A couple of days later, she sent me an email, explaining that she was perfectly happy with the agreement that she and her husband had reached in mediation and that the reason she had reconsidered was a result of lawyer paternalism. In fact, she was so upset with her lawyer for imposing her values and goals onto her, that she terminated her. The parties both thanked me so much for all that I had done to help them to resolve their issues. I would also like to point out that I have received referrals from both of them to this date, which conveys to me that nobody had any regrets with the resolution they reached in the mediation or the manner in which I handed the situation.
As Jerold S. Auerbach wrote in his article titled "Why lawsuits are such fun. Welcome to Litigation" that was published in the New Republic on January 17, 1981, "[T]here are no reliable guidelines for selection [of any attorney], and the consequences of a mistake may be dire... THE BASIC problem is trust... At the extremes, timidity is as destructive as belligerence. (And why fight with your attorney when the legal system generously assures an adversary?) As in any successful relationship, however, client and attorney must engage in mutual struggle toward a common goal. In litigation that goal ought to be the client's interest, as the client defines that interest. The more control the attorney retains, the worse the client will feel - and, the evidence suggests, the worse he will fare in protecting his own interests...."