Wisconsin Supreme Court Supports Enhanced Role for Lawyer Mediators

Dona Playton
Associate Professor and Director, Family and Child Legal Advocacy Clinic, University of Wyoming College of Law
June 8, 2017

The Wisconsin Supreme Court recently approved a rule allowing a lawyer-mediator to draft and file settlement documents in family law cases, which can provide a more cost-effective path to divorce for families. In this situation, the lawyer’s role is limited and the he or she would not represent either party to the mediation; therefore, the lawyer may not give legal advice or advocate on behalf of either party. Parties are also encouraged to seek independent legal advice prior to signing the documents prepared by the lawyer-mediator.

Over the years, mediation has been seen as a valuable alternative to the adversarial nature of our court system, especially in family law matters where children are involved.

Those familiar with the legal system know that costs of a litigated family law matter are out of reach for many couples seeking to end or modify the legal status of their relationship. Today, nearly 70 percent of family law cases involve at least one party without an attorney. Many family law litigants have no financial option to hire an attorney. In addition, many courts struggle to handle these matters in a timely, efficient, and affordable manner, causing courts, legal professionals, and litigants to look for alternative ways to provide or gain court access.

As the Wisconsin Supreme Court points out, “in a family law case, it is not sufficient that parties reach an agreement.” The parties are still required to comply with other court processes and disclosures, including the submission of pleadings sufficient to finalize the legal matter and provide for enforceability or modification, when necessary. These additional procedures are often where self-represented litigants get hung up and where their cases stall on already overburdened court dockets.

In 2015, IAALS hosted a convening of family law practitioners to discuss the obstacles clients face and to explore recommendations for improving the family justice system. A number of recommendations came out of the summit, centered on reshaping divorce and separation processes to support better outcomes for children and to increase accessibility, efficiency, and fairness in our family justice system. Proposed solutions for family law attorneys included the need to:

  • Emphasize problem solving, teaching, and counseling;
  • Amend ethics rules in order to fully realize the role and responsibilities of the modern family law attorney; and
  • Establish robust and interdisciplinary continuing legal education programs for family law attorneys and increase client-centric training programs.  

Wisconsin joins the ranks of others who are seeking innovative, alternative legal services models to ensure that our legal system is accessible to all.