We learned today on the excellent Family Law Prof Blog that the Wisconsin Supreme Court will permit lawyer/mediators to draft and file settlement documents in family law cases. Here’s a summary of the change in the Wisconsin Bar newsletter.
In the past, couples who used a mediator had to hire separate counsel to prepare the documents for filing. More often, court officials say, those couples simply prepare the filing documents on their own. The change is expected to become effective July 1, although the court has not issued a final order, so the effective date could change.
In Wisconsin now, an estimated 70% of those filing for divorce do so without the assistance of any lawyer. So the change may reflect the gritty reality of current divorce law practice.
The ethical rules binding lawyers have been seen in the past as preventing lawyer/mediators from drafting any documents resulting from the litigation other than a memorandum of understanding. The change would allow lawyer/mediators to help divorcing couples to reach agreement on the issues of their divorce, acting as a neutral. After agreement is reached, the lawyer/mediator would then be authorized, with the informed consent of both parties, to prepare and file a settlement agreement and the other documents needed to complete the divorce.
Informed consent requires that the lawyer/mediator explain several things to each party:
- The limits of the lawyer’s role;
- That the lawyer does not represent either party to the mediation;
- That the lawyer cannot give legal advice or advocate on behalf of either party to the mediation; and
- The desirability of seeking independent legal advice before executing any documents prepared by the lawyer-mediator.
It also requires that the lawyer/mediator disclose any interest or relationship that might compromise the lawyer/mediator’s neutrality.
The drafting of divorce documents would not create an attorney-client relationship between the lawyer/mediator and either party. The rule clarifies that the lawyer/mediator would not be authorized to appear in court on behalf of either party.
In memoranda submitted to the court in support of the change, Wisconsin family lawyers were generally supportive of the change, noting that the existing policy penalized those who tried to follow the rules. The change would enable lawyer/mediators to remain neutral and provide a full solution for their mediation clients while remaining within the bounds of ethical practice.