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.