The true story: the law must be followed in only rare circumstances, meaning that if people choose, they can agree to an outcome that does not follow the law. It’s possible to use the law as more of a one option out of many options for resolving issues, rather than as a concrete way to consider an issue. In mediation, clients have the power to chose when to hear the law and in how much detail.
In contrast, if clients choose to work in the traditional, adversarial system, their attorneys will invariably work out a settlement based on legal principles. It is the nature of the system. Since the law is the only framework a judge can use, the attorneys’ bargaining power is based on the most likely outcome of a court hearing.
How the law is used by mediation clients is up to each individual set of clients. Some clients want to hear the nitty-gritty of the law right down to how the local judge, that their divorce case is assigned to, would most likely rule on an issue. Others do not want to know the law at all, ever. Clients have the right to choose whether the law is going to play a major or minor role in their negotiations.
Unmani counsels all her mediation clients to hear the basic legal facts around their agreement before they sign it, even if they did not use the law as a framework for their agreement. This prevents what they call “buyer’s remorse” alluding to a time in the future when a client sits down for coffee with a friend, and when is told by the friend the law around an issue they had negotiated in their own dispute, realizes that they had unknowingly given a huge benefit to the other person, a benefit that they would not have given if they’d known.
Attorneys give legal advice, which is generally viewed as telling clients the law and making recommendations on what course of action to take. Unmani does not give legal advice. Instead, when her clients request legal information, she educates clients on the salient statutory and case law on an issue. If clients want legal advice, they need to hire a consulting attorney.
Clients can choose to reject the law as a reference for how they resolve their issues, but that does not mean that they can opt out of the societal context in which the agreement is made. The law is strange, and sometimes even counter-intuitive. Unmani believes it is a positive aspect of a client’s experience to give informed consent.
It is important for clients to choose a mediator whose views on the role of the law in mediation are similar to theirs, because mediators vary widely in their use of the law in the mediation process. Mediators can be described on a continuum of facilitative to evaluative.
Evaluative mediators tend to state the law as fact, and their confidence as mediators is grounded in their legal expertise. This type of mediator often practiced as a litigator for many years and went into mediation as a second chapter in his or her career. This type of mediator feels adept when she helps her clients get to where the law would likely put them, with a minimum of fighting. And, for clients who want the law as an external framework for their negotiation, are best served by hiring this type of mediator.
On the other end of the continuum are facilitative mediators. When clients pick a facilitative mediator, they pick a professional whose expertise is in helping people communicate, rather than in imposing a legal structure onto negotiations.
Unmani is a facilitative mediator. She allows clients to decide when and how they want to utilize legal information. She believes it is important for people who want legal information to receive it in accurate, non-inflammatory terms, and also that the law should not be forced onto clients as though it has its own legitimacy. She promotes communication skills though maintaining a focus on resolution tailored to each client.