New rules coming to family law

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On paper, the new rule appears simple: Starting July 1, lawyer-mediators will be able to draw up settlement documents in family law cases.

In practice, though, it’s far from easy.

Even the drafters and proponents of the new rule say practitioners shouldn’t rush into taking advantage of it without first undergoing additional training, lest they inadvertently do something that violates ethical guidelines.

Perhaps the biggest source of the new rule’s complexity is its insistence that practitioners maintain neutrality throughout family law proceedings — even during the drafting phase.

Sue Hansen, a Milwaukee lawyer-mediator at Hansen & Hildebrand who helped develop the rule change, said the requirement would seem to go against many lawyers’ instincts. Most legal practitioners, she said, are trained to seek the best outcome for a particular client. Maintaining neutrality requires that they adopt not only a different approach but also a new perspective.

“Functioning as a neutral does not mean you are without personal opinions and biases,” Hansen said. “It’s self-awareness of your foundational views and not imposing them on the couple.”

None of this is easy, said Paul Stenzel, a Shorewood attorney who started working as mediator in 2007.

“It’s learning a new way to think,” he said. “I remember when I started as a mediator, being in my first mediation and the feeling of that lawyer-advocate brain kicking in.”

Stenzel, also a deputy court commissioner in Racine County, said he helps himself get into the right frame of mind by thinking back to lessons he learned from his first mediation trainer, who happened to be a nonlawyer.

“She said she doesn’t worry about what the law is,” Stenzel said. “It’s self-contained in the room: What can we do with these parties assuming that there’s no imbalance and we’ve got a good space? That is really liberating.”

Another way to look at the changes is to recognize that lawyer-mediators should no longer be telling parties in a dispute what they should be doing. They should instead limit themselves to laying out options.

“Take the word ‘should’ out of your vocabulary, and the concept out of the transaction,” advised Milwaukee County Circuit Court Judge Michael Dwyer, one of the rule’s authors.

The new rule will also put forward a new set of expectations that lawyer-mediators will be under when drafting documents in family cases. Dwyer said lawyer-mediators should be taking pains to leave out the sort of legal jargon and boilerplate provisions — such as defense waivers — that are common in agreements drawn up by a lawyer representing one particular party.

Hansen agreed, saying that documents should be drafted not only so that parties can understand what they’ve agreed to and why, but also so that judges and court commissioners are made aware of any deviations from routine procedures.

“You are drafting with your legal knowledge,” she said. “But you are drafting as a neutral with the goal of capturing and clarifying the language of their agreement. It’s a completely different function, and you won’t be in court to say why they agreed to something or explain to a judge or court commissioner what a clause is intended to mean.”

Dwyer, Hansen and Stenzel agree that lawyers should get training before trying their hand at the services allowed by the new rule. They should also be on the lookout for several possible pitfalls.

And, new rule or not, some things are remaining the same.

The new rule, for instance, calls on lawyer-mediators to be competent and diligent, just as they would if they were representing a single client. It also makes no change to the current prohibition that forbids lawyers to represent two parties whose legal interests are adverse.

“The challenge is if the lawyer doesn’t get fully trained, understand the law and do it well, they may slip to behaving like a lawyer and lead the couple into thinking they have joint representation, which is not permitted,” Hansen said.

Even after the rule goes into effect, more work will have to be done. Dwyer said the hardest task could quite likely be informing the public. Judges will also have to determine what their role will be in telling self-represented parties about the options they will have under the new rule, he said.

Ultimately, Dwyer said he believes the rule will make legal representation more affordable and help lower the number of unrepresented litigants who are now seen in family cases.

“I think it will ultimately change, in a significant way, the tone of the practice of family law,” Dwyer said. “What this makes possible, in a way not available before, is legally assisted cooperative dispute resolution, which is what we need in family cases, especially when there are kids involved.”