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Must Parties Confirm That They Are Open to Settlement For Mediation to Be Effective?

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I want to once again deconstruct aspects of Franklin Garfield's article titled "Should Divorcing Couples Who Mediate Be Talking Through Counsel?" because I find it an effective way of raising certain aspects of mediation, bringing about a discussion on those issues and educating people. Mr. Garfield's fifth practice pointer to "family lawyers who participate in the mediation process directly" is to "confirm that the parties are open to settlement."

He described his perspective as follows:

If both parties want to settle, the parties are likely to negotiate a deal. If one party is just going through the motions, or has an undisclosed agenda, or simply cannot sign off on a settlement that feels like committing financial suicide, the mediation will fail.

This is the reason that 'mandatory mediation' is a flawed concept. If the parties are interested in resolving their situation by agreement, they will welcome the opportunity to participate in mediation. If they aren't, mediation is probably a waste of time. The Court can mandate mediation, but it cannot mandate settlement.

While I agree that not everyone or every situation is well-suited for mediation, I disagree that "mandatory mediation" is a flawed concept. Many people are open to settlement, even though they may not realize it at the time. To me, it makes no sense to avoid something because there is no guarantee of its success. How often does a doctor tell a patient that a certain procedure or medication has a 100 percent success rate? Do people decline such treatment because its success can't be guaranteed? The only thing that may be guaranteed is that without the prescribed treatment, the condition will worsen or death will be imminent. From my perspective, it is guaranteed that any dispute can ultimately be resolved in court. However, even Mr. Garfield agrees that nobody can predict what a trial judge will decide. Meanwhile, "the American legal system unintentionally aggravates conflict in divorce situations, even though models that are designed to reduce conflict - such as mediation, and other collaborative approaches - are available as alternatives." The flaw in the logic, in my opinion is the failure to recognize that by making litigation the "default," we have made litigation mandatory. Change the default and you change behavior. That is the premise of behavioral economics.

Interestingly enough, "since the enactment of the mandatory mediation statute in California, the vast majority of child custody disputes are settled out of court in a mediation conference." I do want to point out that the quote above is from an article by Charlotte Germanet, Margaret Johnsontt and Nancy Lemontt titled "Mandatory Custody Mediation and Joint Custody Orders in California: The Danger for Victims of Domestic Violence." They express their concern as follows: "The concept of mediation assumes an equal balance of power between the two parties." I wholeheartedly agree, which is why I always recommend that mediation-friendly attorneys be involved in the process. If the parties can't afford to have such attorneys present in the sessions themselves, they should at least involve them as consulting attorneys before signing on the dotted line, so to speak.

Richard F. Lazur, Psy.D. wrote an article titled "When Emotions Swell and Threaten Capsize." Making some minor alterations to something he wrote in that article, I have concluded that the following individuals must see the inside of a courtroom:

"If a client is entrenched in an immutable position, closed off from considering possible alternatives, or calcified in a belief system, no matter how competent the [professionals involved], that person is unwilling to move. These people are recognized by the rigor, brutality, and callousness of their emotional stances. Elements of cruelty, enmity, and/or sadism as present either in their relations or in representations of their interactions. They are a closed channel. Nothing gets in and change is not possible. While litigation is likely to be drawn out, vicious, and expensive, these people are not good candidates for [resolving their matter outside of a courtroom]. They only want their way, with no room for negotiation. These individuals experience a significant insult at the very core of their personality. Offended by the failure of the promise of marriage, their dreams have been smashed. Unable to reconstitute their resources, nothing can ameliorate their dissatisfaction. They want to be right and no matter what the 'offending' spouse offers, it is never enough. These are the people who want the judge to side with them and vindicate their experience of loss. They want to win.

For the majority of clients, however, who temporarily are thrown off their game by the tsunami of feelings intrinsic in a divorce, the [professionals involved] are able to lend a hand in their navigation of the emotional currents."

I have found this to be completely accurate and read this to all of my clients because I don't want them wasting their time with me, if they, their spouse or both of them fall into that category.

According to Bill Eddy, L.C.S.W., Esq.,"One or both parties in many (most?) Family Court cases today have a mental health issue that is unrecognized -- such as a personality disorder, substance abuse, bipolar disorder, depression -- disorders which are often characterized by denial and blaming others. This reflects the growth of these problems in the larger society today. These are not problems unique to Family Court, but Family Courts need to recognize them."

Along those same lines, J. Kim Wright recently shared the following with me:

A judge told me that he never sees anyone in custody court unless one of them has a personality disorder, addiction or impairment. All others have resolved long before they come to him. (He pointed out that sometimes it is not the client who is impaired, rather the lawyer.)

The presumption ought to be that two parents know what is best for their children. If they are unable to agree and therefore end up abdicating their roles to the Court, the presumption ought to be that they're in need of serious therapy and that the children probably need more.

I completely agree with that assessment. If you pay close attention to what that judge told Ms. Wright, you will notice that "sometimes it is not the client who is impaired, rather the lawyer." This unfortunate problem can be rectified if people stopped seeking out lawyers who they describe as "sharks," "pit bulls," and "very aggressive." I cannot say it enough - aggressive lawyering is counter-productive. What clients should be looking for in a family law attorney is someone who is "caring and competent." Furthermore, "it estimated that 18 to 20 percent of the nation's lawyers abuse alcohol or drugs. By comparison, among the general population, including persons in other highly stressful professions such as physicians and pilots, the estimated rate of chemical abuse is at a much lower eight to ten percent." Mind you, that judges were lawyers before becoming judges and the same statistics have been found to apply to them.

In any event, cases involving such individuals are most likely those that will ultimately end up in litigation. However, as Bill Eddy said, "Sadly, Family Courts provide a forum for people with such problems today (in contrast to when I began practicing law), especially because family lawyers, judges and other professionals are not trained in identifying mental health issues, get stuck arguing about them out of ignorance and there are few mental health resources for treating them even if they were properly identified. Family courts were never designed to diagnose and treat mental health issues, and the adversarial process is guaranteed to fail at it. Reforms need to involve more mental health training for professionals and more conflict resolution skills for clients to help them make decisions out of court in non-adversarial settings."

Fortunately for all of us, Bill Eddy has created techniques for handling high conflict cases, which he calls "New Ways for Mediation®." My analysis was reflected in my review of Bill's training method and was stated as follows: "The techniques Bill Eddy teaches in "New Ways for Mediation®" make perfect sense. Psychologists have long recognized the importance of structure and focus when working with individuals with personality disorders. It is also well-recognized within the psychological community that individuals learn new behavior through conscious or unconscious imitation and therefore it is essential that the mediator model the behavior they would like imitated. Bill also explains the importance of connecting with those in conflict and teaches how to accomplish that through attention, empathy and respect. The final piece of the puzzle is the mediator's role in providing information and otherwise educating those in conflict regarding their choices and possible consequences. By designing a process that incorporates all of these concepts, Bill significantly increases the likelihood of successfully mediating high conflict cases."

Moreover, Bill described the results he has already seen as follows:

By combining New Ways for Families and New Ways for Mediation, we believe that 90% of high-conflict separation and divorce cases can be managed entirely out of court. We are seeing results in this direction from our two Canadian programs, which are part of a 3-year study with just one year to go.

Bill Eddy knows a great deal about high conflict personalities and I am inclined to support his perspective on the subject. Perspective is reality. Therefore, if we change our perspective, we can alter reality.