The ABC's of ADR: Guiding Your Clients to the Use of Divorce Mediation or Arbitration
By Margaret J. Nichols
Article reprinted in part from January 1997 issue of FAMILY LAW JOURNAL, published by of the Michigan Bar Association.

How do you as a competent family lawyer help your client know if and when to use alternative dispute resolution processes? ADR, as the gamut is called, includes a number of techniques designed to reach settlements or conclusions of difficult problems. ADR in family law includes a variety of processes all calling themselves "mediation" as well as an evolving form of family law arbitration which includes custodial issues. There are blended mediation/arbitration techniques. All are increasingly available, even promoted, in the family law arena.

The ABC's of ADR, to be detailed in this article are: "A" = Assess. As in Assess your client's needs, stamina, temperament, and where the case is procedurally against the options available from mediation, through negotiation to litigation and arbitration. "B" = Balance and Be prepared, as in balance the touted benefits with the needs assessment and make sure your client is well prepared for what is involved in the process selected. And "C" = Consult with and Counsel your client about the processes being considered and throughout the process selected.

Speaking from the perspective of attorney/mediator/arbitrator, I will attempt in this article to add some insights into how to decide whether mediation or arbitration would be useful to your client and, if so, which would be best under what circumstances. I will also define the similarities and differences and pitfalls and benefits of these procedures.

Let us start by agreeing that litigation is rarely well suited to the long term parenting of disputing parents or custodians. We might also agree that it makes little sense to spend a goodly chunk of people's marital estate on the tight to divide it. Another given is that most cases do end in negotiated settlements, but they are often hard won battles between hostile spouses championed by highly paid gladiators. The negotiated settlements, therefore, tend to be both unimaginative and unstable.

There are families for whom the courts are not well suited. These include highly placed public figures whose divorce becomes a media circus if dealt with in open courts. Also, couples who have fallen out of love but who have lived together without benefit of marriage, including and perhaps especially gay and lesbian couples, may be much more comfortable resolving their differences with the help of an experienced neutral they choose rather than with the judge the system imposes.

Another facet of modern family law litigation that encourages ADR is long dockets overseen by judges who have a difficult time scheduling "quality time" for divorce litigation, making trials and evidentiary hearings very difficult, sometimes broken up over weeks or months, and hence even more costly than they would otherwise be. Because most attorneys do not have perfect recall of every important aspect of a case over time, each time a case does not conclude and has to wait a prolonged period for the next hearing opportunity, there is wasted preparation time. For the same reasons, the decision of the judge has to be affected by the length of time between hearings and all that goes on in between in his or her courtroom. So, these are the principal drawbacks of litigation: it is a nasty, adversarial, traumatic, and expensive process prone to producing judgments that do not fit the families involved very well, whether negotiated or determined by the court.

Private mediation is voluntary, chosen by the parties as their desired method to resolve issues and not because it was suggested by the court. Private mediation often precedes filing of litigation and takes the place of discovery and negotiation. It also can be chosen after a case is filed. It is best characterized as not involving direct participation of counsel for the participants, although advice and counsel are strongly encouraged and occasionally a private mediator might call a session with counsel to help with a stalemated legal issue.

Within the genre of private mediation are a number of approaches which, again, may influence your decision as to what each client most needs if mediation seems an appropriate option. These include lawyer mediators, mental health practitioner mediators, interdisciplinary mediation teams, and a variation on the interdisciplinary team known as the advisory/mediation model. So, how do you decide?

In the lawyer mediator model, lawyers know the legal issues but need to develop sensitivity to the range of emotional issues associated with divorce and need to learn skills to cope with those issues as well as intervention techniques. Mental health mediators know the emotional turf of divorce but need specific training in legal aspects of divorce. Their participants need independent counsel who will support the goal of working out a settlement of all issues, often the mediation process will achieve some level of agreement which will remain while other issues are taken on into the negotiation/litigation/arbitration options. E.g., perhaps the parenting plan worked out in mediation remain intact while issues of spousal support or property are dealt with by the parties and their counsel elsewhere.

Counsel your mediation clients throughout the process. Too many attorneys, unfamiliar with the rigors of mediation in particular or uncomfortable with their client's choice of this process, basically abandon the client to the process. Perhaps they believe that no real role for attorneys exists when a client mediates. However, mediation should properly be regarded as an opportunity to empower your client as you train them in thinking through problems, generating proposals, learning communications techniques, educating them about the specifics of their assets and custodial concerns. It is a fulfilling role for the attorney and one that the client will appreciate immensely.

No one should consider private mediation because they believe it will be easier than having counsel
directly negotiate their differences. Mediation is hard work. It requires people to think about issues from all perspectives. It mandates that the participant clearly articulate their positions and that those positions be expressed civilly and listened to carefully by the other participant The mediator can help bridge communications gaps all the while modeling and teaching the skill of communication to the participants. Gathering of data and sharing of information requires time commitments from people who are perhaps already struggling with unfamiliar single parent or work roles. Participants need to be counseled about how to make proposals and how to respond to proposals in a way that acknowledges the good in them while leaving time to consider (perhaps with counsel) alternatives to the parts that seem unacceptable. The participants will work hard, perhaps as hard as they have ever will worked in their relationship together.

It is important that counsel assess whether a client has the emotional stamina for this process. If a particular client is temporarily knocked off his or her pins by the impending divorce, see if you can negotiate a "time out" for recovery, with the parties entering into mediation after a month or so. Emotionality, in and of itself, is not a contra indication for mediation but should be examined for signs of situational or more severe depression or other mental illness. All of this may well be worth it if the outcome is a mutually satisfactory agreement. But it is not effortless, simple or uncomplicated.


Note: This article will assume that contra indicators for ADR are not present. In most instances, some disputants should not be involved in ADR. These include families in which there has been recent domestic violence or a history of domestic violence or use of intimidation and coercive control. Where these behaviors occur, the imbalance of power between the participants is so great that a mediator or arbitrator cannot be expected to equalize it. There is also the very real risk that physical harm might occur in or in proximity to the ADR site.

*Article reprinted in part from January 1997 issue of FAMILY LAW JOURNAL, published by of the Michigan Bar Association.