MEDIATION - AN ALTERNATIVE TO LITIGATION
 

David S. Goldberg, Esq., Attorney/Mediator
 

WHY MEDIATION?

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In a family law case, does our judicial system create or 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 actually resolve conflicts?            

 

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 conflicts 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 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.  They 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.

 

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 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 version, a wise judge with the wisdom of the biblical Solomon will be able to discern the real truth and dispense justice that the parties will willingly accept.  The truth is that only rarely does either party to a divorce case leave court with a good taste in their 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, as members of a learned and an honorable profession, cannot help their clients in ways that will be most meaningful to them.

 

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 a zealous advocate, believes that a better result can be had in court.   

 

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 addressing the tax consequences resulting from its rulings.  The cost of lawyers, custody evaluators, accountants, actuaries, financial planners, appraisers, 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 seeing, that is, "No U Turn."  It is exceedingly difficult to break away from ingrained expectations and behaviors. 

 

In the movie, Dead Poets 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.

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