A Word From Attorney Magliochetti On Mediation Services
I want to take the opportunity to comment on what some people believe is the inconsistency in being, on the one hand, a “tough” trial lawyer and at the same time holding myself out as a successful mediator. When I began practicing in the area of divorce and family law over 25 years ago, “divorce mediators” were largely unheard of. People hired their divorce lawyers to gather information and reach out to the other side (sometimes with the assistance of a willing judge to sit in and assist out of court) and cases were ultimately settled by agreement 85 to 95 percent of the time. I always thought that my job as a divorce lawyer was to get a fair, equitable result by agreement that everyone was a little bit unhappy with (that means it’s fair), saving the client the emotional agony and financial destruction of a trial and allowing everyone to go on with their lives, changed but not ruined.
Somewhere along the way, lawyers decided to begin formally assisting people in settling their cases as neutral, unbiased mediators, who represent neither party as a lawyer but instead guide the parties toward their desired fair result. In concept, this is a wonderful idea and there are many great and experienced lawyers who have worked wonders for families by way of this process. As noted above, I had already developed a reputation as a “fighter” and was not looking to expand my practice to include mediation.
So what changed my mind? Over time I began receiving clients with post-judgment problems who had previously mediated their cases to a conclusion, using people who had either no legal experience whatsoever or who were lawyers with limited experience in the courthouse. I became aware that, in addition to the wonderful lawyers who were successfully mediating Family Law cases, there were also many divorce mediators who had no legal experience or limited courtroom experience.
Too often, I saw firsthand the problems which resulted from poorly worded agreements, clients who were given interpretations of the law which weren’t complete or accurate, cases that were mediated that shouldn’t have been (because of an imbalance of information or power between the parties) and far too often I found people being told “what a court would do,” by people who had never set foot in a court of Family Law.
I decided I could do a better job for people. Notwithstanding my willingness to “fight the fight” I actually enjoyed working peaceably with people in a venue that was certain (court never is) and cost effective (court NEVER is). Having spent so much time in court and also drafting settlement agreements, I can convey to my mediation clients various examples of situations that I have tried, not only to give them an idea of possible results, but to also convey that there are often varying results from varying judges.
I also firmly believe that mediation should not require a retainer up front. I believe that people should be able to ask for your time as mediator when and as they need it and as result I bill hourly and my fee is due at the end of each session for the time spent that day. No initial retainer is required for mediation clients. As a mediator I am an “interventionist” in that and I ask a lot of questions in connection with my mediations. I want to be sure that both parties understand what they say they want as an end result and I want to be certain that their expectations are both educated and grounded in reality, as opposed to being based on pure emotion or misinformation. I firmly believe that the majority of lengthy and costly divorce litigations didn’t need to happen. I believe that people just need one person who will allow them to be heard and who will help them to understand the value of listening and compromising. That, in my view, is the essence of a successful mediation.