When I meet with a client for the first time, I am often – almost always – asked, “well, what are my rights?”
As a collaborative attorney and mediator, I wrestle with that question. On one hand, it is my duty as counselor to help my client have all relevant information necessary for them to make a decision about any agreement. Even as an attorney mediator, I believe an ethical duty to provide clients with neutral information that can help them make informed decisions. However, if I answer that question directly, by laying out for them exactly what they have a ‘right’ to under the law (which is purportedly what the client is asking) then I’ve immediately created a baseline from which all other agreements will be evaluated. This is essentially the approach that many traditionally-oriented family lawyers take: they start from what a court might order, and work backwards from there, trying to get their client something as close to or better than this. This seems fair enough: the client should get at least what a court would give them, or they may as well litigate and get that from a judge.
Yet this approach constructs an immediate problem. In the clients’ head now is a preconceived notion of what they want, based on what a court will give them. Yet what that court’s judgment might have very little to do with what is actually best for the client and their family.
For this reason, I approach this question with the following in mind: the issues that need to be decided in any family law matter are of the most intimate kind – relationships, money, parenting, time. While the state may have some legitimate interest in overseeing some aspects of these parts of peoples’ lives, ultimately the state doesn’t really want to be micromanaging and determining these issues on a day-to-day basis. More importantly, the rights-based approach to fairness measures one person’s life against another, or against an idea of how people should live their lives. Who really wants to have their own life measured against some generic pre-determined idea of how they should be living?
Therefore, I always answer the question about “rights” with questions. I ask clients questions about what is most important to them and what they need. I learn more about what my clients value, and how they make determinations about fairness. I remind my clients that the ‘fairness’ calculus from the Court system is only one measure, one that has been created over time by committees and judges observing families from a distance and coming up with a most-common denominator evaluator. Yet each client is different, each family is different. One of the beautiful things about our country is that we are free to live our lives in the way most meaningful to us. We celebrate this freedom each day. Why would we want to give up this freedom voluntarily?
Great article… How to strike a balance between rights and remedies with interests and needs is a very difficult thing for clients to understand while going through this emotional time in their life.
One of the foremost benefits that the parties to divorce mediation achieve is the communication skills necessary to effectively achieve agreement with their spouse. This may sound simple and not that meaningful an achievement, but the process of learning how to “get to yes” is just like any other talent. The way it develops is through 3 key elements.
Practice, practice, practice. Once the parties to a divorce have been through the process, have spent the time reasoning with one another, they oftentimes find that there is a carry-over and they can more easily deal with other issues as they present during their ongoing relationship. People often tell us that they have never before experienced this sort of give and take with their partner. It is a great set of skills to cultivate.
GREAT point to make, Ken, and thank you for your comment. I particularly appreciate you highlighting the fact that parties going through this process can learn new strategies for handling conflict between each other in the future. We have such limited opportunity to cultivate conflict resolution skills in our life these days. We are aware of the need to exercise our bodies, but rarely do we take the initiative to exercise our empathic skills or interests-based thinking. Mediation provide clients with just such an opportunity.
Nice post…It always happens that the clients who come to ask something or comes to settle something ask you what is the surety of this proposal and all that questions very often.