Proposal in front of Supreme Court would give lawyer-mediators in family cases the ability to craft documents

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The Wisconsin Supreme Court is asking practitioners and others to weigh in on a proposed rule change that would allow lawyers who mediate family law disputes to also draft legal documents that result 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, keeps non-lawyers from preparing that paperwork.

A petition now before the Supreme Court is asking for a rule change that would let lawyer-mediators draft the documents. The proposal would not come without limits, though. To draft documents, lawyers would first have to pledge to remain neutral and would have to get informed consent from the parties in a case.

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 assistance 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.

Of those agreements, many are not being drafted by lawyers. Without the benefit of legal expertise, litigants often 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 not let their work standards slip when they are working for parties in mediation, rather than regular clients.

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

The biggest difference is that lawyers working on mediations would not have the standard attorney-client relationship with the parties.

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.