High court seeking comments on proposal to let lawyer-mediators draft docs

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The Wisconsin Supreme Court is asking practitioners and others for their thoughts on a proposed rule change that would allow lawyers who mediate family-law disputes to also draft documents resulting from those negotiations.

The high court’s current rules prohibit lawyers who are mediators from drafting the legal documents parties need to obtain judicial relief. Nothing, though, prevents non-lawyers from preparing those documents.

The petition asking for a rule change would let lawyer-mediators draft the documents. Before doing so, though, the lawyers would have to pledge to remain neutral and get informed consent from the involved parties.

Mediators already have a responsibility to remain neutral during mediations. The proposed rule would simply expand that responsibility, said Marsha Mansfield, a Madison attorney who runs the Economic Justice Institute, a group that offers civil legal aid to low-income clients and others.

All in all, the proposal is good one, Mansfield said.

“It think it is a sensible effort to provide more resources to litigants who otherwise would be going through the family courts without any legal assistant at all,” she said.

The proposed rule change is part of an attempt to reduce the number of family court litigants who do not have legal representation. According to the petition memo, 70 percent of family court litigants do not hire lawyers, and 95 percent of family court cases are resolved through written settlement agreements.

And many of those agreements may not be drafted by lawyers. Many times the result is that litigants simply end up having to return to court at a later date.

If the Supreme Court does adopt the proposed rule, the hope is that litigants will start coming to court better prepared, Mansfield said. Court procedures should become generally more efficient, she said.

Mansfield noted that the proposal has been vetted and supported by organizations such as the Wisconsin State Bar.

Mansfield said one point to keep in mind is that the new rule would require lawyers to perform as well for parties in mediation as they would for regular clients, even though they wouldn’t have a standard attorney-client relationship with those parties.

“They have to do it competently and diligently,” she said.

The rule-change petition was submitted to the Supreme Court in October by the Director of State Courts. The proposal ultimately stems from the Planning and Policy Advisory Committee, which helps the high court and the Director of State Courts set long-term goals for the state’s court system. Follow @erikastrebel