If both lawyers are settlement-minded, is there any point in spending more money on a mediator?

The reality is that no matter how well intentioned the lawyers may be, there is no replacement for direct communication between two people. A client-focused mediator is able to work collaboratively with the parties on a constant basis to discover more proactive and creative solutions than their lawyers may be able to find. The reason is that the lawyers cannot speak directly with an opposing client. While this rule is intended to protect the clients, it can stifle creative and flexible communication. After all, the clients know their situations best.

To illustrate, lawyers may generally discuss child support and maintenance/alimony in terms of a direct payment between the parties. With the help of an experienced mediator, the parties might opt for a settlement that calls for the payment of certain household bills, school expenses, or health costs. A mediator can provide more creativity in the context of non-financial issues as well, e.g., a parenting schedule. Lawyers may only consider “generic” visitation schedules, such as those including alternative weekends for the non-residential parent. Through a mediator, the parties can negotiate a more personalized schedule, such as one allowing a Saturday visitation the first and second weeks of each month and a Thursday-through-Monday schedule for the third and fourth weeks of each month.

One would expect this more personalized approach to increase the total service fees. On the contrary, mediation allows both parties to save money on total fees. Consider that with lawyers, the husband and wife are billed for individual time spent communicating with his/her respective lawyer. Additionally, both parties are billed for the time the lawyers spend communicating with one another. Mediation reduces the overall time and fees for the clients by eliminating the “double billing” of lawyer-to-lawyer communication through direct and collaborative communication between the parties. This is not to say that lawyers should be excluded from settlement negotiations, only that the parties might benefit more if they place themselves at the center of the settlement discussions, and consult their lawyers on the side.

Robin Hoberman, president and founder of Solutions First in Chicago, is an experienced mediator and licensed attorney. She has dedicated herself to heightening the public’s awareness of mediation and the mediation process.