MEDIATION - THE ALTERNATIVE TO LITIGATION
David S. Goldberg, Esq.,
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
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 Jamaica, "no
problem" - an insignificant event not
worthy of much notice. In my case there was anger and resentment and a desire
for retaliation. It is clear that my stress, anxiety and conflict did not have
an external origin. It arose from within. "We have
met the enemy and he is us",
said Pogo. So it is that parties 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.
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
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 Sesame Street - "Which side of the chicken has the most feathers?" The
answer - "The outside." Funny, but not the answer we expected. In their legal
training lawyers are trained in a protocol that requires them to defeat the
other party -- to "win". They pay lip service to a desire to seek a fair
outcome, but then define "fair" with reference to the outcome sought by their
client. Too often family practitioners do not give their clients the freedom to
make decisions that the client may perceive to be "fair" if the attorney, in the
traditional role of zealous advocate, believes that a better result can be had
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 North Miami for a
time. I recall a sign on the Bay Harbor Island side of the Broad Causeway which
read - "U Turn Only - No Left Turn." It took a very long time and a lot of head
scratching to understand a sign that was totally at odds with what I was
conditioned to see, that is, "No U Turn." It is exceedingly difficult to break
away from ingrained expectations and behaviors.
In the movie, Dead
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.
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
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
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 Asheville, North Carolina, minister, psychologist, mediator,
inspirational speaker, for many of the thoughts articulated in this article.
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
(d) The Good Divorce,
by Constance Ahrons, Ph.D., published by Harper Collins, brings a refreshing
perspective on a painful experience.
1, 2006 - Family Mediation Services, Inc.
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