When impasse is apparently reached, it's great to look at options. Send the
folks back to NEW mediators might be a good option.
-----Original Message-----
From: Kimberly Stamatelos kimberlymediator@xxxxxxxxx [CollabLaw]
<CollabLaw@xxxxxxxxxxxxxxx>
To: CollabLaw <CollabLaw@xxxxxxxxxxxxxxx>
Sent: Sun, Feb 7, 2016 9:42 am
Subject: Re: [CollabLaw] Scope of representation in modification
Love, love , love this response and YES it’s an imaginary scenario.
Ok let’s muddy the waters……
What if you suspect that it could be tempered if clear heads prevail? Maybe new
spouse(s) are stirring the pot and they went through a contentious divorce and
are encouraging party to “keep their options open.”
Wondering if a mediation could temper things? The “magic” that all
peacemaker/collaborative attorneys have is a sense of calm resolve, a problem
solving approach and encouraging a “pause” before ramping up. Sending these
folks to “old paradigm” lawyers might just start unnecessary drama and
contentiousness.
Is there anything we can do in this scenario short of saying “sorry I’m out?”
If clients are seeing us as problem solvers don’t we owe them more?
Thanks for your engaging response!!
Kim
On Feb 7, 2016, at 9:33 AM, carl Michael rossi cpchicago@xxxxxxxxx [CollabLaw]
<CollabLaw@xxxxxxxxxxxxxxx> wrote:
Hi Kim!
First off, just to be clear, this is NOT a case, is it? It's a created
scenario about which you are writing something, right? Curious about the
'topic' of your piece.....
The "disqualification" is not simply about what any future process is called,
it is about the nature of it. Is it "against" the ex-spouse? Is it
"oppositional"? If so, my answer is to say that I'm 'out'.
This sounds already like a decidedly "adversarial" mediation. Since this couple
has already 'decided' there it will NOT be a return to the CP approach, I don't
see any benefit for your client to having you in the feigned 'mediation'
process in-contemplation-of / under-threat-of litigation. Nor do I see any
particular reason in this case to believe that mediation will provide the
support and encouragement necessary for a joint decision on the issues when it
has already been decided that the, in principle, MORE supportive environment of
CP won't help them.
Since you mention the "other team members" from the CP dissolution..... Part of
the Participation Agreement [the ones that I've seen], and at least my
Engagement Letter, is that each member of the professional Team remains
available to the couple to help them resolve any difficulties that arise
following the dissolution [though not in an adversarial process]. I do not
have the impression that this couple has availed themselves of any Parenting
Specialist or MHP from that process when those problems arose. Unfortunate.
But that they have chosen not to do so would itself for me result in my
declining to involve myself in this dispute.
My guess would be that the spouse demanding change to the agreement was not
genuinely satisfied with the outcome, but 'settled' for it. [why I don't like
'settlements'] My impression is that s/he likely will therefore not trust you
and would make that known to his/her attorney. As I've suggested here before,
as that person's litigation attorney, the first thing I would do is to seek an
order of the court to have YOU removed from the matter based upon the
Participation Agreement.
Do YOU really want to get involved in an adversarial matter? Even though it's
called 'mediation'? One in which one battle might be whether you should even be
allowed to stay in it? One in which every suggestion you might have that is
not the goal/desire/position of the other party/attorney is likely to be met
with "we'll see what a judge says" or "that's not what 'the law' requires'?
Lawyers love the refrain "but the client wants me"; it's a powerful emotional
draw. But to this I always say, "so what?" Attorneys turn down or even
abandon clients all the time. Often for no reason other than we don't like
them or they can no longer pay us. Yet we hesitate to tell a client who 'wants
me' that I simply can't help you because of the agreement you and I made. Much
less willing are we to say that I can't help you because I don't choose to
involve myself unless the parties understand that they MUST work together and
agree that they WILL make every effort to do so recognizing thar the other
person's needs are every bit as important and valid as their own and that both
must subjugate their own needs to the needs of their children..... oh, wait,
that would be a Collaborative Practice approach.......
Finally, and I don't mean any slight or offense, but rather just in general,
what particular 'magic' do you think that you have, or that your presence would
bring that will 'make' the mediation successful?
InJoy!
cMr
Collaborative Practice Chicago
Divorce Without Warfare
carl Michael rossi, M.A. J.D., L.P.C.
Attorney, Mediator, Coach, Counselor
773-442-2751
cMr@xxxxxxxxxxxxx
www.CPChicago.net
Executive Director, Collaborative Practice Professionals of Illinois
Publisher, The World of Collaborative Practice: A Magazine Promoting
Collaborative Dispute Resolution for the Full Range of Possibilities. An
international online magazine for professionals and the general public
On Sun, Feb 7, 2016 at 7:19 AM, Kimberly Stamatelos kimberlymediator@xxxxxxxxx
[CollabLaw] <CollabLaw@xxxxxxxxxxxxxxx> wrote:
[Attachment(s) from Kimberly Stamatelos included below]
Scenario: Client comes to you for modification action due to parenting time
problems. Perhaps there is even withholding of parenting time altogether. You
represented client in initial collaborative divorce. Modification action will
not be collaborative but client wants you to represent them to try to get it
settled in mediation or through negotiation. If that doesn’t work they have
made it clear they will pursue litigation including contempt if necessary.
Can you represent client or are you precluded because of possible litigation in
the future, even though your role is non-litigation?
What if there is a dispute resolution clause in the original Decree requiring a
collaborative meeting or mediation before filing court action? Does that
change your answer?
Does it impact your answer if opposing counsel is litigation counsel and not
collaborative counsel? What if other party’s former collaborative counsel is
willing to provide same scope of representation for their client?
Since collaborative document is not signed, what if you agree to informal
discovery? Does that impact your answer?
If answer is “yes” you can represent through mediation stage, can you use other
team members from original collaborative divorce to assist through the
mediation process?
Simply put, if the modification is not a collaborative case and litigation
option is open, are you (and other former team members) just automatically
“out” even if peacemaking efforts will be exhausted first?
Any other comments about modification welcome as I write about this topic. Feel
free to address any subpart of this topic that is interesting to you.
If you want to reach me offline to discuss further please email
kimberlymediator@xxxxxxxxx
Thank you my brilliant colleagues!
Kim
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