THE BLOG
07/17/2013 02:53 pm ET | Updated Sep 16, 2013

Do Feelings Matter in Mediation?

In her book titled The Good Karma Divorce, Judge Michele Lowrance, a domestic relations judge in the Circuit Court of Illinois, wrote the following:

The couples I see in my courtroom are desperately searching for emotional release; they smuggle their pain into their testimony, even when it is not relevant to the topic. They do so at every opportunity, hoping that somehow the court will know how to lessen their agony. In the end their desperate emotions remain unattended and unsatisfied... The court system was not built to house these emotions, and attorneys are not trained to reduce this kind of suffering. Divorcing people expect relief far beyond what the legal realm can provide from their attorneys and the courts, and they often end up feeling like members of a powerless, unprotected class....

In my personal life, when divorced people discover I am a member of the judicial system, they are exploding to tell me how the system has failed them... They expect emotional injustice to be righted by legal justice... The unfortunate fallacy in believing that emotional injustice can be righted by the legal justice system creates anger and feelings of being cheated... Years after the divorce both groups of people understandably still have enduring bitterness and quiet, brooding grudges.

In other words, much of the dissatisfaction people have with the litigation process has to do with the fact that it ignores the feelings and emotions that are fueling the locomotive, which is pulling the litigation train. Many of those feelings and emotions involve issues that led one or both parties to decide to end the marriage. However, in a no-fault state, such issues are generally irrelevant, with the exception of domestic violence. As Judge Lowrance says, "If you are going to trial on principal and are seeking to vindicate some moral standard that is crucial to you, you should know that moral standards and principals are not what courts are meant to address. Trials only address the law. For example, in a no-fault state, adultery is not relevant."

I am by no means advocating for the elimination of no-fault divorce. While divorce rates did rise as a result of no-fault divorce, domestic violence rates fell by approximately 20 to 30 percent and wives' suicide rate fell by 8 to 13 percent. Furthermore, fault based divorce does not and never has addressed the underlying feelings and emotions. Rather, it merely requires proof of the existence of such fault before a divorce will be granted.

While litigation and the court process may not address feelings and emotions, such things are dealt with in collaborative law and certain mediation models. In fact, the website for the Maryland Courts contains a document titled "Mediation Framework Descriptions." The document begins with the following paragraph: "Mediation is a process for people in conflict which includes two or more participants and one or two mediators. The trained impartial mediator(s) helps people in conflict to communicate with one another, understand each other, explore options for mutual gain, and if possible, reach agreements that satisfy the participants' needs. A mediator(s) does not provide legal advice or recommend the terms of any agreements. Instead, the mediator(s) helps people reach their own decisions which may include agreements, may rebuild their relationship, and if possible, find lasting solutions to their disputes. Mediation is a process that lets people speak for themselves and make their own decisions [emphasis added]." It is important to note that feelings are a key aspect of each and every model of mediation mentioned in that document.

The Mediation Descriptions by the Maryland Program for Mediator Excellence specifically provides as follows: "'Evaluative Mediation' is not defined here because we believe it is a misnomer. Evaluation is a technique, not a mediation framework. If a process consists solely of an evaluation and attempts to get participants in line with the evaluation, then that process is not mediation, it is more likely a settlement conference. In a survey asking Maryland mediators how they define their practice, no mediator responded that they define their practice with the term 'Evaluative.'" It should be pointed out that the difference between what is described as "Analytical Mediation" and "Evaluative Mediation" in that document is that in "Analytical Mediation," the parties needs are actually taken into consideration and the parties are not speaking through their attorneys because the mediator is listening to what the parties have to say about their needs.

I raise these issues because of something I read in an article titled "Budget cuts lead to dysfunctional family law departments" by Franklin R. Garfield that was published in the Los Angeles Daily Journal on April 9, 2013. Mr. Garfield's second practice pointer to "family lawyers who participate in the mediation process directly" is to "help the parties put aside their feelings and notions of fairness. Absent an agreement to the contrary, [applicable] law is controlling. The parties' feelings and notions of fairness are mostly irrelevant. The parties have usually shared their feelings with each other and anyone else who will listen on dozens of occasions; sharing them with the mediator is unlikely to advance the analysis...."

When Mr. Garfield refers to "mediation" in his article, he is apparently referring to "evaluative mediation." I refer to "evaluative mediation" as an "alternative form of litigation," and according to the Maryland Program for Mediation Excellence, "evaluative mediation is not mediation."

My point is not to criticize litigation or the court process, which serves an essential role in resolving legal disputes. The crucial question is whether or not litigation or the court process is essential or even necessary for any given legal dispute. I have never meant to indicate that "evaluative mediation" has no value. The fact that I am distinguishing it from what I refer to as "true mediation" does not mean that I don't believe it serves a purpose. If "evaluative mediation" is able to help parties to resolve their dispute in a more expeditious manner and at a lower overall cost, it certainly has value.

I had the privilege of having been invited to author a chapter in the 2013 edition of Inside the Minds -- Strategies for Family Law in California -- Leading Lawyers on Understanding Developments in California Family Law." My chapter is titled "A Comparison of Dispute Resolution Methods Available in Family Law Matters." Although I don't consider "evaluative mediation" to be mediation, I did include it as a mediation model because the book was specific to California and because of the emphasis placed on "evaluative mediation" by the legal community in California. In my chapter, I clearly set forth both the advantages and disadvantages of "evaluative mediation," as I did with all other dispute resolution methods.

My intention is to make a distinction, so that when people opt to enter into mediation, they enter into the type of mediation they all desire. People should get what they want and if they don't know and understand their choices, they can't make an informed decision. Furthermore, once they make an informed decision on the process, they should be able to determine which professionals are best suited to assist them in that process. If the "mediator" and attorneys only know and understand the "evaluative mediation" model, they are not well-suited to assist clients in other mediation models. This is extremely important to recognize, considering that in Maryland, "evaluative mediation" is not even considered mediation.

In mediation, should lawyers help the parties put aside their feelings? Are the parties' feelings mostly irrelevant?

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