MEDIATION - THE ALTERNATIVE TO LITIGATION
David S. Goldberg, Esq., Attorney/Mediator
In a family law case, does our judicial system create/perpetuate conflict? Does it promote confrontation or cooperation? Does it achieve win/win outcomes for the parties? Is it forward looking, or does it look backwards to assess blame, find fault and punish the offender? Does our judicial resolution protocol compel the parties to air their dirty laundry in public? Does it require lawyers to give advice that causes pain? Are children truly protected? Do our courts dispense justice? In the final analysis, does the court truly resolve conflict?
Let's start with the premise that our courts do not and cannot resolve conflict. It is true that the court will bring an end to litigation and fulfill its function to keep order in society; however conflict arises and is resolved not in the legal arguments of counsel, not by the trial judge or by the appellate courts, but in the hearts and minds of the parties themselves. Unless the court can restore the parties to intellectual and emotional equanimity, it cannot be said to have truly resolved their conflicts. The case may be concluded and the file closed, but the anger, the resentment and the underlying conflict remain, and the stage is set for the next battle in what often becomes an ongoing and expensive war of attrition.
In order to understand mediation
theory, we must understand the essential nature of "conflict".
An example - my wife is driving down the road when she is cut off by another
driver. She taps the brakes, slows for a moment, and then continues her
journey. I am driving down the road when I am cut off by a clear menace
to public safety. I curse and fume and become preoccupied contemplating
the ways I can exact revenge for such outrageous behavior. Where did my
conflict with the other driver originate? The objective event for my wife
and I was identical. In my wife's case there was, as they say in
involved in separation and divorce create their own conflicts, and only the parties can resolve them. Some never do. And the court cannot do it for them.
Perception is everything. I am driving down the road on a cold and rainy day in March. Walking on the sidewalk is a mother and her son. She has a raincoat with a hood that she is clutching at her throat, turning her head away from the wind and rain, clearly unhappy with the weather. Her son, age seven, has his head thrown back trying to catch raindrops on his tongue, clearly enjoying the experience. How differently these two people perceived and reacted to the same event. For one there was discomfort. For the other, a fun-filled moment. We need to understand that people do perceive and react to events differently, and that their perceptions are the basis of a world largely created from within themselves.
Both lawyers and clients delude themselves into believing the impossible fiction that, where the husband has one version of truth and the wife another, a wise judge with the wisdom of the biblical Solomon will be able to discern the real truth and dispense justice which the parties willingly accept. The truth is that only rarely does either party to a divorce case leave court with a good taste in his or her mouth. Even a "victory" is tempered by dissatisfaction with the cost, the delay, the public disclosure of intensely personal matters, and the realization that the judicial system is simply not equipped to deal effectively with personal relationships. Unless we understand the limitations of our judicial system on the one hand, and the ultimate goals and benefits of dispute resolution on the other, lawyers cannot help their clients in ways that should be most meaningful to them as members of a learned and an honorable profession.
So if the court cannot effectively
resolve conflict, what is the answer? There is a riddle popularized on
Using a well worn cliché, we need to think outside the box. In family law we encounter any number of obstacles when we ask the court to resolve disputes. The court does not have jurisdiction to address college expenses or life insurance or (with very few exceptions) the payment of debts. The court does a poor job in assessing the tax consequences of its rulings. The cost of lawyers, custody evaluators, accountants, actuaries, financial planners, appraisers, guardians ad litem (attorneys appointed to represent the children), employment rehabilitation experts, and more, can become prohibitive. In a litigation model lawyers must perform their due diligence even though the end result may be financial devastation for the parties. The scorched earth practice of family law does little to heal and much to hurt. Too often the outcome depends on the skill and experience of the lawyers and not on any objective criteria of fairness. When the case is over and the parties are able to stand back dispassionately and ask, "What have I done?", the question may morph into, "What have our attorneys done to us?"; and the answer, whether deserved or not, may further denigrate the role of attorneys in the eyes of the public.
It is not easy for lawyers to change
their way of thinking about their roles as advocates. To reference
another cliché, it is not only what they do, it is who they are. Nor is
it easy for laypersons to recognize that they can and should take
responsibility for their own decisions and not leave important matters to be
determined by a stranger in a black robe. My parents lived in
In the movie, Dead Poet's Society, the Robin Williams’ character tells his students that if they cannot see the answer they need to climb up on their desks and look at the problem from a different perspective. Mediation is that different perspective.
WHAT IS MEDIATION?
The matters discussed above created a perceived need to formulate another paradigm for the resolution of family law disputes, one that does not foreclose the possibility of reconciliation, does not increase the level of anger, allows the parties to come to closure in their relationship with their dignity intact, and helps the parties effectively and peacefully co-parent their children. That paradigm is mediation - utilized for many years in labor disputes, but not in the area of family conflicts until the late 1970s.
Mediation is a process by which a neutral party, the mediator, assists the parties in reaching agreements with respect to all issues which are important to them, e.g., custody, visitation, child support, property division, payment of debts, alimony, health insurance, life insurance, college, tax matters, etc.
The protocol is straightforward: (i) identify the issues to be resolved; (ii) collect the information necessary to intelligently address the issues; (iii) look for options which both parties can accept; (iv) come to agreements that will meet the needs of both parties. The mediator generally prepares a Separation and Property Settlement Agreement for the parties who then take it to their respective attorneys for review.
The approach is cooperative, not confrontational. The attack is directed to the problem and not the other party. The parties may resolve some issues and leave matters they cannot resolve for the court. The process can take place with the parties alone or with attorneys present. If the parties are unable to reach agreement with respect to a particular issue, the mediator can help them assess their best and worst case scenarios if the matter were to proceed to court. Having said that, however, we must be mindful of the old joke that, in a town in which one lawyer cannot make a living, two lawyers will do very well. Court of Appeals Judge John McAuliffe was often heard to say that trying to figure out what might happen in court was like nailing Jell-O to the wall. There are few absolutes in family law, but the mediator can provide a range of possible outcomes and emphasize that self determination is to be preferred over the uncertainty of a court decision. No matter how meritorious your position, the vagaries of our legal system may result in a “loss”. Unfortunately, what is important in a court trial is not what is true….it is what you can prove. Telling the truth is less important than appearing to tell the truth.
In mediation we prepare for settlement, not for trial. In mediation both parties are heard, the mediator levels the playing field, and neither party is permitted to overpower the other. In mediation we are mindful of the words of John F. Kennedy that - "Our task now is not to fix the blame for the past, but to fix the course for the future," and Will Rogers' comment - "I only worry about the future, cause that's where I expect to spend most of my time." In mediation we remain cognizant of the definition of insanity - doing the same thing again and again and expecting a different result - and we endeavor to break that pattern of non-productive behavior. In mediation we lay the groundwork for future communication between the parties and allow them to deal with each other in a civilized manner. In mediation we address the needs and concerns of the parties. In mediation we recognize that divorce does not end the family, it restructures it. In mediation the happiness and welfare of the children are always uppermost in the decision making process.
Parties who settle in mediation are willing to accept outcomes they would rail against if imposed upon them by the court; and they are more likely to adhere to an agreement they have fashioned themselves.
PREPARING FOR MEDIATION
When preparing for the mediation process, keep in mind that the goal is to address needs and not wants. Avoid taking firm positions. Don't draw a line in the sand from which you cannot retreat. Address interests. Attack the problem, not the other party. Understand the emotions with which both parties are dealing. Listen. Be creative. Decide upon your goals. Consider the alternative to a peacefully negotiated agreement. Perform a cost-benefit analysis. Consider the following:
1) AVOID - Avoid confrontation. Remain objective. Remain dignified. Be pleasant.
2) ATTACK - Attack the problem and not the other party. Remain cautious and skeptical, but be willing to change your view when warranted.
3) ACCOUNT - Account for the costs of litigation if the case does not settle - both financially and emotionally. Consider the impact on the children and on the future relationship of the parties as it relates to the children.
4) ACCEPT - Accept the reality that the marriage is probably going to end and that a reconciliation will not take place. Nothing interferes with settlement more than a situation in which one party has accepted the end of the relationship while the other party remains in denial and is not ready to move on. But consider counseling if reconciliation is a possibility, or to help both parties reach closure in their relationship, or to improve communication between them, or to deal with the problems that children encounter when their parents separate and divorce.
5) ACKNOWLEDGE - Acknowledge the feelings, concerns, fears, needs and interests of the other party. When a party expresses a desire for alimony, what you are most likely hearing is a profound fear of impoverishment. When a party seeks more time with the children, the fear is often that the parent/child relationship will be irretrievably broken. Language is important. "You cheated me!" and "I feel cheated" send two different messages, evoke two different emotional reactions, and invite two different responses. Be careful what you say and how you say it. Speak neutrally, e.g., "Neither party will ......" or “Both parties will….” Acknowledge that the marriage had good times; that the parties were successful in raising their children. Accentuate whatever positives there may have been.
6) APOLOGIZE - the most powerful tool in creating a setting in which the parties can reach a settlement. An apology has enormous emotional benefits for both parties and will create a positive atmosphere in the room, greatly enhancing the possibility of a successful outcome for both parties.
A FINAL WORD
Parties who are experiencing separation and divorce are often overwhelmed with painful emotions - fear, anger, denial, rejection, guilt, shame, failure, grief, loneliness, despair. Their ability to think and to act rationally can be greatly impaired. Our courts are poorly equipped to deal with the emotional component of divorce. Mediation offers a gentle and compassionate method of helping parties through the necessary process of dealing with their children and addressing property and support issues in a non-threatening environment. Mediation is not therapy. But the process of working toward an agreement, of being able to see the light at the end of a dark tunnel, and of coming to closure with respect to the relationship, is in itself therapeutic and facilitates healing.
A review of the materials presented on this web site will provide more information about the process of mediation.
1) Many thanks to the late Dr. Will Neville of
2) Suggested reading:
(a) The principled approach to negotiation utilized in family mediation is set forth in Getting to Yes, by Fisher and Ury, published by Penquin.
(b) With respect to the essential nature of conflict, the poem, Desiderata, by Max Ehrmann can be found at: http:hobbes.ncsa.uiuc.edu/desiderata.html
(c) How to Win Friends and Influence People, by Dale Carnegie, published by Pocket Books, remains a classic.
(d) The Good Divorce, by Constance Ahrons, Ph.D., published by Harper Collins, brings a refreshing perspective on a painful experience.
©2007 Family Mediation Services, Inc. All Rights Reserved.