It is puzzling that the Model Rules of Professional Conduct do not impose an explicit duty upon lawyers to counsel clients regarding alternative processes for resolving disputes other than litigation. Many lawyers and other professionals would undoubtedly agree that there are situations in which a client’s interests are likely better served from alternative dispute resolution processes as opposed to litigation. Family matters, particularly those involving children, are clearly appropriate for mediation or collaborative practice. The potential destructive impact of protracted adversarial litigation upon families and children is well known. Yet, our ethical rules do not require lawyers to discuss such alternative processes with clients.

Recognizing the adverse impact of contested child custody litigation upon family members, our courts long ago initiated a court-connected mediation process whereby parents could opt first to engage in mediation with the Family Services Division. That court-connected mediation program, combined with judicial case management, has resulted in an established process whereby clients in family matters involving children are typically steered toward mediation before that family is propelled into contested adversarial litigation.

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