DIVORCE MEDIATION: A CLIENT'S CHOICE by Mark Portman was originally written for the benefit of lawyers and therapists to familiarize them with the mediation process and the importance of making their clients aware of the option to mediate when facing the divorce process. Mr. Portman offers an overview of the reasons why mediation should always be considered and how clients can explore mediation without compromising their legal rights.
The article was first published in In Brief Magazine, Santa Clara County Bar Association, Winter 1992 and later re-published in the Family Law News, State Bar of California Family Law Section and the Spring Newsletter of the Northern California Association for Marriage and Family Therapy in the summer of 1992.
Divorce cases that lead to unrestrained and extended litigation are destructive and disastrous expenditures of resources. One family court judge estimates that discovery alone can cost more than $25,000 in a "fairly routine case".(l)
Even with limited discovery, most dissolutions involving one pretrial hearing and representation through a traditional settlement process will result in fees and costs to each party in the range of $5,000 to $10,000. There has to be a better way!
Issues of divorce should be resolved in court only as a last resort. The drawbacks and disabilities of litigation in resolving certain issues have become so widely accepted that even our state's legislature has codified a criticism of the system as being "at times arbitrary, time consuming, intimidating, expensive and unnecessarily complex."(2) If no effort is made to help clients find a more effective expeditious way of settling disputes, their resources may be devastated by the operation of the court system.
Divorce mediation is an alternative to litigation that should be considered even before a divorce case is filed. Individuals facing divorce need a clear explanation of the mediation process, in order to make an informed decision about this option. Therapists and counselors can offer support by becoming familiar with the divorce mediation process or suggesting a consultation with an experienced mediator.
The Legislature has declared that the policy of the law is to promote settlement, encourage cooperation between the parties and reduce the cost of litigation in family law cases. (3) The court may order the payment of attorneys fees as sanctions by a party who does not cooperate and make good faith efforts to settle. (4)
It is an unfortunate consequence of this legislation that many cases have become battles to prove which side was the least cooperative. In such cases there is no better example of how the process can over-shadow the real issues between the parties and their need to find a functional means of settling them.
Mediation diverts the parties from the adversarial process entirely and is truly consistent with the stated policy of the law. An advisory Code of Professionalism was recently adopted by the Northern California Chapter of the American Academy of Matrimonial Lawyers and has been approved by various local bar associations. A key provision of the Code stales that, in every case, counsel should consider whether the client's interest could be adequately served, and the controversy more expeditiously and economically disposed of, by an alternative dispute resolution process. (5)
Mediation is an effective and preferable alternative to litigation. This article describes important features of mediation, dispels some common misconceptions and offers basic guidelines to consider when referring clients to this process.
Mediation is a voluntary, confidential and cooperative problem-solving process in which the parties to a dispute meet with an impartial and neutral facilitator who assists them in communicating their primary concerns, first to the mediator and eventually to each other. Through this process the parties work to identify issues, collect information, evaluate options and find solutions that address the concerns of both.
The parties' mutual satisfaction with the settlement increases the likelihood of their future cooperation in the execution of the agreement. This is especially valuable in regard to parenting concerns and stabilizing the future relationship of the divorcing parents.
Mediation is not a means of eliminating private attorneys from dissolutions. However, the attorney's role changes in mediation compared to the traditional adversarial process. Both parties may individually retain counsel to advise them at any time before or during mediation. Clients need to be able to discuss their rights and may also have immediate questions that can only be answered by their own attorney. Counsel may also help a client prepare for negotiations during the mediation process. Clients may need attorneys to help them gather and evaluate information or mediation. Before any proposed settlement is finalized each party reviews the settlement with their attorney. The attorney-mediator may provide relevant legal information, but does not advise or represent either party. Therefore, the client's relationship with private counsel is an important part of this process.
Mediation does not preclude gathering and evaluating the same information that would be needed to present the case in court. Rather than having each attorney work with one client to obtain relevant information, the mediation process allows the parties to promptly design and implement an integrated discovery plan. Both parties agree to voluntarily exchange information and documents. Both can sign authorizations devised to obtain information from third parties without delay. Typically, joint experts and consultants can be employed to render an unbiased analysis of the information, always subject to review of the parties' separate counsel. Just as in any dissolution matter, a good settlement can contain warranties to cover the possibility of a failure to disclose; in the event that the parties choose to rely upon their unverified statements as a basis for settlement.
It has been argued that mediation only works with nice people who are already on friendly terms and want to remain so. To the contrary, researchers conclude that high levels of conflict do not preclude mediation and, in fact, as much divorce-specific anger between spouses exists between mediating couples as between couples in the adversarial process. (6)
Many experienced family law judges and attorneys will attest to the fact that the worst cases of unrestrained and extended litigation have been fueled by unresolved conflict that had very little relevance to the legal or factual issues in court. Our no-fault system makes no room for the expression and release of emotions by the parties.
An assessment of an individual's ability to mediate should address four basic questions. (7) First, can the parties deal fairly with each other? Second, are the parties open to considering the process? Third, would one party tend to dominate or control the other? Fourth, would either party be unable or unwilling to deal with subjects that need to be resolved?
Fair dealing in mediation requires each participant to identify and communicate their own views, interests and needs on every issue and allow the other party to do the same. The mediator facilitates this dialogue. Fair dealing also means that each party is willing to work toward a result that will address the concerns of the other party as well as their own.
To determine if both parties are open to the process, assuming that neither party rejects the idea out of hand, they may arrange to consult with a mediator simply to explore that issue. Before any mediation begins, an experienced mediator should explain the process in detail and assess whether mediation is appropriate. Since their participation is entirely voluntary, after the first consultation both parties can discuss the process with their attorneys and make a fully informed and considered decision of whether to mediate.
One party's tendency to dominate or control the other can prevent mediation by disabling the other party's ability to participate effectively in the dialogue. The mediator has a duty to assure a balanced dialogue and must attempt to diffuse any manipulative or intimidating negotiation techniques used by either participant. (8)
A commonly argued criticism of divorce mediation has been the concern over potential domination, manipulation and negotiating power imbalances. Many have argued that women are generally at a disadvantage in mediation because they are less able than men to represent their own interests in direct negotiations. This conclusion was tested in longitudinal studies comparing women's satisfaction with case settlements reached through mediation versus the adversarial process. Responses revealed that women in mediation were significantly more satisfied with the outcomes and did not believe that their spouses had any advantage over them.(9)
The parties must be willing to mediate every issue that needs to be resolved. Although the parties may not actually settle every issue, one party cannot insist that any one issue may not even be open for discussion. This negotiating technique exerts control over the process and prevents the concerns of both parties from being fully discussed. Despite the lack of a settlement, permitting discussion of all issues in mediation could lead to an agreement to resolve the impasse by another form of dispute resolution.
Clients generally have a clear intuitive sense of whether or not to mediate after hearing an explanation of the process and what is expected of them. Any initial hesitation or uncertainty about mediation should be taken seriously and discussed fully. Although people may choose not to mediate at one stage of the dissolution, the factors affecting the decision may change and a future reconsideration is always possible.
When mediation is offered in the earliest stages of the dissolution there may also be concerns over issues needing urgent attention, such as custody, housing or temporary support problems. The fear that mediation will not progress quickly enough to resolve these concerns must be addressed. In this context, whether mediation can be useful will depend on a mutual willingness to begin discussions quickly enough to satisfy a true need for urgent resolution. Private counsel may also file a motion for temporary relief, securing a hearing date with the court, while the parties begin mediation. Often, by the hearing date, there can be one or more mediation sessions in which interim agreements are reached, eliminating the need for an adversarial hearing.
People facing divorce want to know how to protect and secure their interest without substantial expense and litigation. When discussing these concerns, the alternative of divorce mediation has to be considered as a method of dispute resolution that can enable them to be directly involved in reaching a lasting and effective settlement of their case, while keeping the costs of the process under control.
Mediation enables clients to be directly involved in the decision-making that forms the settlement of the issues in their dissolution. It also has the potential of creating a cooperative relationship that can reduce high conflict between the parties and especially benefit their children by relieving tension between the parents. Private counsel are used effectively as advisors and are not involved in costly extended litigation.
Considering the benefits that can result if the parties can work directly with each other to reach a fair and meaningful settlement, divorce mediation should be fully explained to all couples contemplating divorce. They need to know that there is a choice that can be made between the traditional adversarial process and mediation.
Footnotes:
(1) Stewart, James W. (1991). California Divorce Handbook: How to Dissolve your Marriage without Financial Disaster. Rocklin, CA Prima, Ch.4.
(2) (former) California Code Section 4760 (1991 Reg. Session, ch 1131 eff. 1/1/92) (See California Family Code section 20000)
(3) (former) California Civil Code Section 4370.6(a) (See California Family Code section 271)
(4) Id.
(5) Code of Professionalism adopted by the Northern California Chapter of the American Academy of Matrimonial Lawyers, Sept. 1990.
(6) Kelly, J., (1989). Mediated and adversarial divorce: Respondents' perceptions of their processes and outcomes. Mediation Quarterly, 24, p.74
(7) Friedman, Gary, (1985). Assessment of parties' suitability to mediation. Center for Mediation in Law.
(8) Divorce and family mediation: Standards of practice by Task Force Mediation, Section of Family Law, American Bar Association (adopted by ABA House of Delegates Aug.1984).
(9) Footnote 6, Supra at p. 83.