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Parties' Positions and the Mediation Process

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On June 26, 2013, I received a call from Bob Berlin, editor of DR Currents - A Publication of the Dispute Resolution Section of the State Bar of Georgia, requesting that I write an article for publication in that Newsletter. He said he loves my writing and mentioned that he appreciates much of what I have said relative to mediation. He also specifically referenced my article titled, "Should Divorcing Couples Who Mediate Be Talking Through Counsel?" I was incredibly flattered and agreed to write an article for him to publish in DR Currents. That article titled "When the Law Is Involved, Do Feelings and Notions of Fairness Matter?" was published in the Summer 2013 edition of DR Currents. For those of you who regularly read my Huffington Post Blog Column, you may have noticed that the article combines two of my prior blog columns. Actually, I first wrote the article for DR Currents and then decided to use some of the material for two separate Huffington Post Blog Columns. However, even if you previously read either or both of those columns, I would strongly suggest that you read the article in DR Currents because it contains information not covered in those columns and I did not do justice to the material by breaking it apart.

In any event, too much time has passed since I last discussed mediation in one of my columns and I therefore decided to once again return to that topic. This segment will focus on the third of Franklin R. Garfield's "practice pointers that may be useful to family lawyers who participate in the mediation process directly," as set forth in his article titled "Budget cuts lead to dysfunctional family law departments" that was published in the April 9, 2013 edition of the Los Angeles Daily Journal. Mr. Garfield's third pointer was as follows: "3. Evaluate the strengths and weaknesses of the parties' positions. On the one hand, each lawyer can assure his or her client that if the parties end up in trial, he or she will present all of the evidence that supports the client's version of the facts and make every argument that might convince a judge. On the other hand, the client needs to know whether his or her position is a slam-dunk, more likely than not to prevail, a 50-50 proposition, arguable but unlikely to prevail, barely plausible, or a dead-bang loser."

Everything I have learned about mediation provides that the goal of mediation is to get people off of their positions by delving into the underlying reasons for those positions. Once those reasons are understood by everyone involved, agreements tend to fall into place. In fact, Massachusetts Institute of Technology (MIT)'s Basic Mediation Training Trainer's Manual from 2002 references the importance of "moving from positions to interests." Specifically, that document provides that one of the goals of listening in mediation is "bringing out underlying interests & concerns (positions --> interests).
POSITION: A stance one takes on a particular issue.
INTEREST: An underlying concern or need of a person
• Avoid reinforcing positions--frame things in a way that leaves the most options open.
• The more you know about interests, the greater the options for resolution."
Furthermore, that document provides as follows: "This Manual is intended to serve as a guide for the trainer(s) leading a Basic Training in Mediation for participants with no prior mediation experience."

In other words, basic mediation 101 teaches the importance of moving from positions to interests. Meanwhile, Mr. Garfield is preaching quite the opposite and is graciously sharing his wealth of mediation knowledge with attorneys. I wish I were surprised that Mr. Garfield was selected as Southern California Mediator of the Year in 2013 by the Best Lawyers of America. However, as I have said before, the legal profession refers to this "alternative form of litigation" or "soft arbitration" as "mediation" and have thus created confusion in the marketplace.

Furthermore, I am afraid that evaluating the "strengths and weaknesses of the parties' positions" is often more perception than reality. For instance, we used an "evaluative" mediator to settle a creditor claim filed against our mother's estate by her ex-husband of ten years. I thought the claim was completely baseless and told my attorney that if we used Hon. Robert Letteau as the mediator and if his "evaluation" was that the claim was legitimate, I would pay the claim. Judge Letteau's "evaluation" was the the claim was completely baseless, but he recommended that I offer to pay as much as I expected to incur in legal fees and costs to defend against it. The "mediation" ended when my mother's ex-husband refused to accept less than $1 million. Judge Letteau was so certain that the case was baseless, that he subsequently sent a letter expressing such a belief to both sides. At trial, Judge Aviva Bobb ruled in favor of my mother's ex-husband and awarded him $1 million. Until then, I actually believed that a well-qualified "evaluative" mediator could properly "evaluate the strengths and weaknesses of the parties' positions." The lesson I learned from that case was that perception is reality, until the true reality bites you in the a**.

That being said, as I mentioned in a prior article, I was so disturbed by Mr. Garfield's article that I actually posted sections of the article in discussions on the social media. Let me share with you some of the responses I received:

Gary Direnfeld stated, "What a mind boggling, backwards view of mediation. Basically, mediation as described is litigation with a third party with no power to impose a decision. DOOMED TO FAILURE and an exacerbation of conflict. GOOD MEDIATION is about resolving conflict and with a good mediator, the parties will learn something about themselves and dispute resolution. The parties will also learn how to aspire to common interests and learn how to generate solutions directed to achieving their common interests. Sad if that article of misinformation gets around."

Leonard Levy said, "How can someone with this approach to mediation claim to have served the parties' interests? The author loses sight of the fact that the interests of families is best served when self-determination is applied. Imposition of legal mandates does not generally provide the parties with the best means of moving forward after families go through a divorce. Imposition of the legal mandates eliminates the ability of the parties to demonstrate generosity beyond that required by the law. Further the role of the mediator is almost precisely the opposite of that expressed in the article. I mediated a family law matter in which communication of the parties' interests led to reconciliation. This would not have been possible had the author's approach been taken."

Bart J. Carey commented as follows: WOW! Thanks for catching this, Mark. Talk about having it all bass ackwards."

Katherine Hollister stated, "I am stunned by the lack of understanding of the mediator's role and function. We are especially not there to evaluate strengths and weaknesses of positions and to offer advice and guidance. This is the antithesis of mediation !! I hope you were able to leave a comment at the LA Daily Journal as well."

Sadly, what this "mediator" described is what the vast majority of family law attorneys and judicial officers believe mediation to be in my jurisdiction. When lawyers select "mediators," they tend to select people like this. Thus, the problem!