12/30/2013 02:33 pm ET Updated Mar 01, 2014

What's Truth Got to Do With It?

According to Franklin Garfield, "Family lawyers who participate in the mediation process directly [should] explain how contested issues are likely to be resolved in court." 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 stated in pertinent part as follows: "In the beginning of the case, each attorney tends to analyze the issues based only on his or her client's version of the facts. As the case develops, those facts often turn out to be incomplete or incorrect. Once the parties have exchanged disclosure documents and conducted whatever formal or informal discovery they deem appropriate, the attorneys should have a pretty good handle on all the facts of the case, not just those facts that support their clients' positions. The mediator's proper role is to provide the parties with legal information and guidance..." He then notes that certain generalities can be made, even though "the mediator cannot predict what a trial judge will decide" and that the results vary "depending upon all pertinent circumstances." This was the fourth of ten practice pointers laid out by Mr. Garfield in that article. For those interested in following along in consecutive order, my prior articles on this subject are as follows: "Should Divorcing Couples Who Mediate Be Talking Through Counsel?", "Is Mediation About Reaching the Same Result in a More Efficient and Economical Manner?", "When the Law Is Involved, Do Feelings and Notions of Fairness Matter?", and "Parties' Positions and the Mediation Process."

I completely agree with the first three sentences from Mr. Garfield's fourth practice pointer. In fact, one of the biggest mistakes lawyers make is to accept their client's version of the facts as "God's word." As Mr. Garfield said in another article, there is a "line between presenting my client's side of the story and telling the truth... [T]he parties' stories almost always conform to their present self-interests. Although these stories may not be fabricated, they do reflect each party's emotional perspective. I had never forgotten what I learned in my first trial. Because there was no way for me to know if my clients' stories were true, I never again rehearsed a client's testimony." I have had many a client tell me that they feel as though they are divorcing their spouse's lawyer rather than their spouse. They tend to make this statement after reading an email or letter sent to me by their spouse's attorney because the lawyer fails to draw that line. Interestingly enough, however, various state and federal statutes require lawyers to conduct a "reasonable inquiry" before relying upon a client's version of the facts. It seems that many lawyers "forget" that they have such a duty, particularly in matters involving family law. Unfortunately, such behavior only exacerbates the conflict, which thereby increases the cost, among other things.

I concur with Mr. Garfield that "[t]he mediator's proper role is to provide the parties with legal information and guidance." However, I happen to believe that lawyers should provide their clients with legal information. If the lawyers don't have that knowledge, why are their clients retaining them? If they do have such knowledge, why are their clients obtaining that information from the mediator and not from their own attorney? If lawyers are involved and they disagree regarding the law, an "evaluative mediator" can help to resolve that issue. Obviously, if clients are not represented by attorneys, it is far more important that the mediator provide them with legal information.

I very strongly agree with Mr. Garfield that "the mediator cannot predict what a trial judge will decide." In fact, on December 20, 2013, I published an article on that topic titled "Inconsistency on the Bench" and previously published an article titled "Judicial Bias in Family Court." I also concur with him that the results vary "depending upon all pertinent circumstances." Unfortunately, however, the judge assigned to the case happens to be one of the most "pertinent factors." That being said, how does the mediator "explain how contested issues are likely to be resolved in court?" As I keep saying, what happens in court is more about perception than reality. Nevertheless, "soft arbitration" also known as "evaluative mediation" operates on such a perception.

There is a difference between "fundamental fairness" and "legal justice." Mediation and Collaborative Law are not about "legal justice." Evaluation in those processes is more about evaluating information than it is about evaluating legal positions, unless we are really referring to "soft arbitration." These processes are being handled in the shadow of the law, but the law is merely a baseline. Clients should not walk away from an opportunity because they want something the other side is not willing to give and that they could not even obtain in court. Under those circumstances, we should have them consider their best and worst alternatives to a negotiated agreement. However, this should not be done unless and until someone is about to walk away from a negotiated agreement -- at least not unless the proposed resolution is outside the realm of reasonableness. Moreover, people are biased in that they tend to believe that they will obtain the best possible outcome. I bet you that if 100 people are told that they have cancer and have a two percent chance of survival, the majority of people will want to believe they will fall within the two percent. However, we all know that only two of them will statistically fall into that category. For proper management of client expectations, they should be informed of their worst case scenario if they were to go to court. With regard to the best case scenario, I think we need to be very careful when and how we convey that information to clients because of human biases.