Family Law mediation on the rise

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When attorney Susan A. Hansen began her family law practice more than 25 years ago, clients viewed her as a “problem solver.”

But that perception has changed.

“People see lawyers as having the potential to exacerbate conflict, instead of helping resolve it,” said Hansen, who chairs the State Bar of Wisconsin’s Family Law Section Board.

That’s one reason that Hansen and other family law attorneys in the state have seen their collaborative law and mediation practices explode.

Some attorneys say the shift has also been fueled by the increasing percentage of divorce litigants appearing pro se, especially in Milwaukee County. According to a recent court report, 83 percent of family law cases in the county had at least one pro se litigant.

The recession has compounded the problem, said Milwaukee attorney Catherine A. La Fleur. Given the state of the economy, many litigants see mediation as an attractive and cost-efficient option.

“The economy is certainly forcing this a little bit,” said La Fleur.

To address the pro se problem, court systems in both Dane and Milwaukee County have established programs to refer mediation cases to local family law attorneys.

La Fleur incorporated mediation into her practice several years ago and now regularly takes cases assigned by the county’s program.

Though the county only pays $200 per case, she said that her reputation for successfully mediating cases through the court program leads to “several” referrals per week for her private practice.

Good business sense?

Hansen said that family attorneys are shifting to mediation because it makes good business sense.

She noted that when she started out, only about 10 percent of people represented themselves in family law cases. But as the percentage of pro se litigants has grown, the pool of potential clients seeking traditional representation has shrunk.

“When we go from a 90 percent market share to 30 percent, from a business perspective, it’s as clear a statement as we could receive that we need to change,” she said.

Madison attorney Steven A. Bach suggested that the rise in mediation is also fueled by people who have heard “horror stories” about the court system and are willing to try something different.

Bach, of Cullen Weston Pines & Bach LLP, won’t handle divorce mediation unless at least one of the parties is represented by an attorney, because family law can be so complex and contentious. But he noted that successful mediations generally result in settlements that people are more likely to comply with than an order imposed by a judge.

“It’s no good to go to court and get an unfavorable decision,” he said. “Mediation is a way to better meet client needs.”

But mediation isn’t the answer in every case, said Hansen, who still does a fair share of litigation.

She said it all depends on how willing the parties are to negotiate.

La Fleur said she can usually tell within 45 minutes whether mediation will be successful. Cases where the parties can’t compromise inevitably end up in court.

“From a cost perspective, a way to get people to settle down is through mediation, but sometimes people just need to vent,” she said. “And that can get very expensive.”

Still, getting clients in the door for mediation is preferable to having them try to proceed pro se.

Michele L. Perreault, who works out of the Madison office of DeWitt Ross & Stevens SC, recently mediated a divorce case which the parties had initially taken to court pro se.

The couple inadvertently waived their lifetime federal health benefits and Perreault had to help “undo the damage.”

“The parties probably paid more money than they would have had they sought out an attorney as a mediator in the first place,” she said.