Mediation and Divorce

Reasons divorce attorneys are reluctant
to use mediation, and reasons why they should.

The following comments are often made by divorce
attorneys in rejecting mediation, together with mediators responses.

1.) "This case won't settle. The other side is too unreasonable and there is too much hostility."

The purpose of mediation is to create a process in which the other side is encouraged to be more reasonable and less hostile. One side's angry behavior justifies the other side in resisting or engaging in hard bargaining.

2.) "I'm an experienced attorney. I've settled cases before without needing a mediator."

While attorneys are often able to settle their cases, the highest rates of settlement are reached when third party mediators conduct the negotiations. This frees the attorney to be an advocate and lets a professional concentrate on achieving settlement.

3.) "We don't need to settle this case. If I wanted to settle, I would just call the other attorney."

If you don't want to settle, you are not required to do so, but mediation may allow you to get what you want at lower cost and in less time. Mediation does not force a settlement, but creates as choice which did not exist before.

4 ) "Why mediate? We have a mandatory settlement conference with a judge coming up soon."

Mandatory settlement conferences with a judge can help, but in mediation you are able to retain control over results yourself and not be pressured to settle.

5.) "This case is too complex for mediation."

Mediation works extremely well in complex cases because each item can be negotiated separately or as part of a whole package. If it cannot be settled, the case may be simplified and less costly to try.

6.) "We don't trust the other party -- they have not acted in good faith."

Mediation is a process in which remedies can be created that do not depend on trust. Trust is often destroyed by the adversarial nature of litigation and may be recreated in mediation.

7.) "I tried mediation once and it was not successful."

Mediation is not always successful but it helps reach agreements in about 90% of cases. Each case is different, and a lack of settlement in one case does not mean another case will not settle.

8.) "We've completed discovery and a trial date is set -- why should we mediate now?"

At trial you may win or lose, but in mediation, because both sides agree, there is a "win/win" outcome. Even though discovery is completed, you may be surprised by unexpected evidence at trial.

9.) "Mediation will only provide the other side with an opportunity for free discovery."

Both sides will learn more about each other's case in mediation, but the truth will come out at trial anyway. Surprises do not generally help or produce fair results.

10.) "It's futile. The other party is uncooperative. They won't even return our phone calls. We can't agree on anything -- how can a mediator assist us?"

The mediator will call the other side and try to bring them into mediation. They may be angry but not unwilling to engage in reasonable conversation. If they agree, will you?

11.) "Since this is a non-binding process, there is nothing to keep the parties from changing their minds."

When mediation results in agreement, a document is prepared which makes the settlement final and binding. Before agreement, the parties have a right to change their minds, to try an option out, or make sure the final result feels balanced and fair.

12.) "Mediation doesn't guarantee a resolution. We need a final and binding decision to end this dispute."

Mediation can result in a final decision if both parties agree. You can't lose anything by entering the process, because you control the results. In some cases, mediation is combined with arbitration to produce a result the parties agree to accept.

13.) "Mediation means we have to make a compromise, and we won't."

Mediation does not always mean you have to compromise. In many cases both sides can get 100% of what they want. The decision will always be up to you.

14.) "We've already tried to settle this matter without success -- how can mediation make any difference."

A mediator may be able to discover why previous efforts at settlement failed and create solutions to overcome these difficulties. A third party outside the dispute can sometimes see the options clearer.

15.) "We don't need mediation -- we're certain to win."

It is always possible to lose in court. In mediation, you may both be able to win. If you do not like the proposals for settlement in mediation, you may continue to litigate without losing anything.

(With assistance from Jerry Murase)

The following information is compiled from the writing of Kenneth Cloke,
Director of the Santa Monica Based Center for Dispute Resolution.

Mediation is a confidential, voluntary method of dispute resolution in which the parties settle their dispute through effective communication, exploration of options, negotiation, and compromise.

Mediators:

Help parties identify the concrete problems to be solved.
Deal with emotional issues that may interfere with agreement.
Assist in making arrangements for visitation with children.
Locate expertise to help resolve financial and business issues.
Develop options for dividing assets and organizing finances.
Reduce the level of anger and non-communication.

Statistics demonstrate that over 90% of disputes can be resolved through mediation. Many agreements are reached in 1 to 3 sessions. Following agreement, parties may receive a mediation agreement written in plain language. Some attorney mediators may give the parties a draft Marital Settlement Agreement to take to their attorneys for review.

In contrast to therapy, mediation is oriented toward reaching agreement. Its focus is on the future instead of the past. Mediators help the parties develop rules for respectful communication and negotiate from a position of equal strength. They attempt to rectify power imbalances and help the parties acquire knowledge or expertise where needed.

Mediation is an infinitely creative process in which the parties become responsible not only for the problem, but for the solutions as well. It is effective in divorce cases because it allows parties to shift from being enemies to respectful listeners, collaborative negotiators, problem solvers, and potentially even friends.

Lawyers more and more encourage divorcing couples to mediate rather than litigate their disputes. In litigation the money dwindles, the good will evaporates, the trust is destroyed, the children are traumatized, and the result is imposed on them by a judge who cannot hear or understand the emotional basis for the conflict or resolve it in a way that allows both parties to claim it as their own.

Mediation should be the first step in every divorce, and preferably the last as well.

Divorce mediation offers great advantages for parties over litigation, including:

1.) COOPERATIVE PLANNING FOR THE FUTURE
Although a couple may separate, many decisions can still be made together, especially regarding children.
A mediated divorce can go beyond adversarial proceedings by producing agreements which include future planning on:

Creative real and personal property division;
Disinterested evaluation of financial needs and plans for support;
Joint structuring of children's living arrangements and visitation;
Respectful communication and decision-making.

2.) PRIVACY AND CONTROL
The parties confidentially determine the issues to be discussed and decide the outcome, rather than surrender negotiating power to lawyers or to a judge. The mediator helps each party acquire needed skills and advice to reach a decision.

3.) EXPLORATION OF ALTERNATIVES
Through a mediator, parties can brainstorm and explore possible creative solutions which neither side thought of or would risk proposing in an adversarial proceeding.

4.) LOWERED COST IN TIME AND MONEY
Mediation allows parties to resolve issues rapidly, at a time when they need immediate solutions, and at a lower cost than when negotiating is done by lawyers. If outside expertise is needed on tax problems, evaluation of businesses or real property appraisals, mediators can recommend a neutral expert.

5.) BETTER FOLLOW-THROUGH ON AGREEMENTS
Because both sides created the decision, they are more likely to honor their agreements.

6.) A SENSE OF DIGNITY AND MUTUAL RESPECT
Mediation encourages parties to understand each other's points of view. The relaxed atmosphere and informal process promote personal dignity and respect for each other which adversarial proceedings often defeat.

7.) FLEXIBILITY IN TIMING
Couples may choose mediation at various points in their relationship as the need emerges, including:

Premarital agreements
Internal family conflicts, including family businesses
Marital and temporary separation agreements
Modifications after final separation.

8.) FILING SERVICE
Once they have reached agreement, parties can have all their divorce papers prepared and filed for them at lower cost than where it is necessary to protect against the possibility of adversarial action.

Divorce attorneys may be ethically required to advise their clients of the existence and advantages of mediation, and to inquire whether they have considered ADR as an alternative. Mediation works best preventatively, and clients may be able to avoid needless filing fees, discovery, order to show cause hearings, etc. by using mediation to explore the possibilities for agreement before any legal action is taken.

Some cases are not appropriate for mediation, but it is difficult to identify these in advance, as human beings differ, and some cases that appear unresolvable are merely difficult to settle. Mediators disagree about the appropriateness of mediation in cases involving spousal abuse, alcoholism and drug addiction, insanity and threats of violence, among other cases. Most mediators feel that questionable cases should nonetheless be referred to mediation for evaluation, as little is lost by bringing the parties together. In cases involving battering, sexual harassment or rape, and addiction, it is important to determine whether the mediator has experience dealing with that problem.

Mediators can be selected by looking through the membership roster or requesting a referral from one of the professional organizations in the field, such as the Southern California Mediation Association (SCMA), the Academy of Family Mediators or the Society of Professionals in Dispute Resolution (SPIDR), at the following addresses:

Southern California Mediation Association
10850 Wilshire Blvd., Suite 400
Los Angeles, CA 90024
(877) 963-3428
(310) 474-7687

Association for Conflict Resolution
1015 18th Street, NW, Suite 1150
Washington, D.C. 20036
Voice: (202) 464.9700
FAX: (202) 464.9720
e-mail: acr@acrnet.org
web: http://www.acrnet.org/

Marin Mediation Services
4 Jeannette Prandi Way
San Rafael, CA 94903
Voice: (415) 499-7454

Center for Dispute Resolution
2411 18th St.
Santa Monica, CA 90405
Voice: (310) 399-4426
FAX: (310) 399-5906

Working together, divorce lawyers and mediators can form as effective team to encourage clients to end their fighting and get on with their lives, and to control difficult personalities and aggressive or violent behavior. Parties need advocates who will advise them regarding their own self-interest. They also need third parties who will help them understand that their self-interest includes reaching agreements through collaborative negotiation and compromise. Self-interest in its larger sense also means that the other party feels satisfied, or at least equally dissatisfied, with the result.

The idea that justice means I win and the other side loses fails to recognize that divorce is no-fault, and that it does not matter who is right when the children are wronged. Mediation helps parties escape the cycle of revenge and retaliation, end their relationship and get on with their lives. Most attorneys will not disagree, regardless of the potential reduction in litigation. What is lost to adversarial combat is won to dignity and collaborative problem solving.

Reading List on Divorce MEDIATION, Custody, and Parenting

The following is a list of books you may find helpful reading on divorce, mediation and custody problems.

1.) Books on Divorce Mediation:

Bienenfeld, Florence, Child Custody Mediation, Science and Behavior Books (1983).

Blades, Joan, Mediate Your Divorce, Prentice Hall (1985).

Cloke, Kenneth, Mediation, Revenge and the Magic of Forgiveness, CDR, 1337 Ocean Ave., Santa Monica CA 90401 (1990)

Davidson, Howard, Ray, Larry, Horowitz, Robert, Alternative Means of Family Dispute Resolution, American Bar Association (1982).

Erickson, Stephen K. and Erickson, Marilyn S. McKnight, Family Mediation Casebook, Brunner/Mazel (1988).

Hansen, James C. and Grebe, Sarah Childs, Divorce and Family Mediation, Aspen (1985).

Riskin, Leonard L., Divorce Mediation: Readings, American Bar Association (1985).

Saposnek, Donald T., Mediating Child Custody Disputes, Jossey Bass (1985).

2.) Books on Parenting:

Atkin, Edith, and Rubin, Estelle, Part-Time Father, Vanguard Press (1976). Helpful advice and information for divorced fathers.

Galper, Miriam, Co-Parenting: Sharing Your Child Equally, Philadelphia, Running Press (1978). Survey of specific examples of people who are co-parenting in different ways.

Gardner, Richard A., Children's Book About Divorce, Jason Aronson, Inc. (1970). Directed towards children.

Gardner, Richard A., The Parents Book About Divorce, Doubleday (1977). General advice about problems facing divorcing parents.

Grollman, Earl A., Talking About Divorce: A Dialogue Between Parent and Child, Deakon Press (1975). Written and illustrated for a young child. Provides techniques for communicating between parent and child.

Krantzler, Mel, Creative Divorce, M. Evans & Co., Inc. (1973). Popular book describing the "stages" of divorce and how to cope.

Maddox, Brenda, The Half Parent, M. Evans & Co., Inc. (1975). Discusses the step-family experience and its problems.

Ricci, Isolina, Mom's House, Dad's House, Macmillan, N.Y. (1979).

Roman and Haddad, The Disposable Parent: The Case for Joint Custody, Holt, Rinehart & Winston (1978). A thorough critique of the arguments against shared custody and an advocate of co-parenting.

Rosenbaum, Jean and Beryl, Step-Parenting, E.P. Dutton (1977). Treats the step-parent family problems concerning children. Chapters 4, 5 and 6 contain a good simple discussion of child development in relation to divorce and step-parenting issues.

Spann, Owen and Nancie, Your Child? I Thought It Was My Child! , Ward Ritchie Press (1977). A humorous account of the experiences of two families coming together.

Willis, Richard, How To Get It Together When Your Parents Are Coming Apart, David McKay (1976). Mainly aimed at teenagers.

Woolley, Persia, Creative Survival for Single Mothers, Celestial Arts (1975). A discussion of the single mother situation.

Woolley, Persia, The Custody Handbook, Summit Books (1979). A survey of the area with emphasis on ideas for sharing parenting.

3.) Books on Divorce:

Adler, Allan J., Archambault, Christine, Divorce Recovery, PIA Press (1990).

Epstein, Joseph, Divorced in America, E.P. Dutton & Co., 1974.

Fisher, Ester Oshiver, Divorce: The New Freedom, Harper & Row, 1974.

Hunt, Morton & Bernice, The Divorce Experience, McGraw Hill, 1977.

Kranitz, Martin A., Getting Apart Together, Impact Pub. (1987).

Mannes, Marya & Sheresky, Norman, Uncoupling: The Art of Coming Apart, Viking Press, (1972).

McKay, Matthew, Rogers, Peter D., Blades, Joan, Gosse, Richard, The Divorce Book, New Harbinger (1984).

Sherman, Charles Ed, Practical Divorce Solutions, Nolo Press (1988).

Ungar, Allan, You and Your Money: A Guide to Financial Self-Confidence for the Suddenly Single, Calabasas Press (1989).

4.) Books on Shared Custody:

Bienenfeld, Florence, Child Custody Mediation, Science & Behavior Books, Inc., 1983.

Silver, Gerald A. & Myrna, Weekend Fathers, Stratford Press, 1981.

Ware, Ciji, Sharing Parenthood After Divorce, Viking, 1982.

5.) Books on Children:

Bienenfeld, Florence, Helping Your Child Succeed After Divorce, Hunter House, Inc., 1987.

Brings, Dorothy Corkille, Your Child's Self Esteem, Dolphin Books, 1975.

Franke, Linda Bird, Growing Up Divorced, Linden Press/Simon & Schuster, 1983.

Jewett, Laudia L., Helping Children Cope With Separation and Loss, Harvard Common Press, 1982.

List, Julie, The Day The Loving Stopped, Sea View Books, 1980.

Wallerstein, Judith & Kelly, Joan, Surviving The Breakup, Basic Books, 1980.

6.) Books For Children:

Bienenfeld, Florence, My Mom and Dad are Getting a Divorce, EMC Corp., 1980. (By Mail: $5.20, EMC Corp., 180 E. 60th St., St. Paul, MN 55010; or at CDR.)

Blume, Judy, It's Not The End of The World, Bradbury Press.

Grollman, Earl A., Talking About Divorce and Separation, Beacon Press, 1975.