Although I have been involved in the mediation field for 15 years, started out with a course in divorce mediation, and am immediate past co-president of the Family and Divorce Mediation Council of Greater New York, I have only dipped my big toe into actually practicing divorce mediation. Mostly, I have concentrated on custody and visitation, workplace and other relationship types of mediation. Why have I steered clear of divorce mediation?
I guess one could say I am a purist and a perfectionist. I want the parties to be fully informed. I want them to know the law as it applies to them, and I want them to have thought things through deeply and thoroughly. In my view, this usually requires the participation of legal counsel for each side. Why do I say this?
In many divorce situations, there will be issues that are simply not clear from a legal standpoint. Most legal questions are subject to interpretation based upon the specific facts of a situation. One lawyer may argue one way, another lawyer may argue another way and who knows where a judge will come out or whether it will get reversed on appeal. Given this uncertainty, how can a mediator be expected to provide legal “information” that can guide the parties? And if a mediator does traverse this minefield, how can he avoid the appearance on partiality when he feels it may be his duty to disclose a minor argument that a party may have, which has a relatively unlikely but not impossible chance of succeeding in court? And if the mediator fails to disclose this, is this fair to the party? And how can a mediator know all this off the top of his head, without doing research on tricky issues? And what if the mediator is not a lawyer? For all these reasons and more, I do not think mediators should be in this position. But I do think that parties need the information.
I have a vision of how divorces could proceed, which I don’t think is unrealistic, which would be fairly reasonable in cost, and would protect the parties. This vision involves lawyers. The question is: what role would lawyers play? In my view, each party should consult a lawyer for the limited purpose of obtaining a concrete view of their case. The lawyer should be able to tell them, among other things, which assets are marital assets and which assets there are questions about. With regard to the assets that are questionable, the lawyer should give a view on how strong an argument there is for that particular asset to be considered a marital asset. The lawyer should be able to give this type of clear guidance to parties so that the parties will have a set of items that they agree upon, and a concrete set of items that they may have different views on, to the extent that they care what the law says. The lawyer should be able to do this for all the financial issues.
Why is this not done? Well, one reason I can think of is that parties have not been forceful or clear in asking for this. Another reason is that lawyers may not want to take on a role that could make them vulnerable to some kind of liability with so little reward. After all, if they are only giving an hour– or a few hours –of consulting services, rather than an ongoing representation, then their risk in opining on the law may not be worth it.
On the other hand, I believe that lawyers can protect themselves, and do. Rather than going out on a limb and saying that something is or is not a marital asset, they would say that it most likely is, for instance. This is the type of advice that makes lawyers comfortable and still gives guidance to parties. And it may be enough.
What is not enough, is having the parties go to mediation without a clear sense of what their legal foundation is, and making decisions without real informed consent. A mediator who is a lawyer is in a very awkward position if he tries to give this type of advice to two different parties. In addition, not every lawyer mediator is knowledgeable enough to do so. A lawyer often needs to have done some research into the law –or have a nuanced view based upon prior research and experience — to have a clear view of how the law would be applied in a particular case. A mediator who is not a lawyer should not offer opinions about how the law would be applied in a particular case.
This is certainly not to say that divorce mediation is a bad idea. Au contraire. Mediation is the best way to help parties decide matters that are in disagreement after they each feel fully informed. And it is ideal, in particular, for helping parties decide parenting issues and to work through difficulties interacting with one another, as parents must, even after a divorce. I believe that after a relatively brief consultation with a lawyer, each party is then prepared to go to a mediator (and possibly also a financial planner) to work out the differences of opinion that the parties may have as a result of their gut feelings, their reasoned preferences, their newly acquired legal knowledge, and anything else that goes into the mix. At the end of the mediation, the mediator can simply list a set of terms that the parties have come to, and the lawyers can draft the agreement. Lawyers who operate in this context would have to develop a mindset that is geared toward getting a deal done, even as they advocate for their client’s interests.
It occurs to me that in the business world, when you have two parties making a deal, the assumption is not that the parties are each represented by litigators. Rather, they are represented by corporate lawyers. Most of the time, a deal is struck and no one talks about court. Just because divorce eventually involves a judge is no reason for the lawyers involved to consider themselves litigators. Their roles should be, by and large, deal makers. In my vision there is a role for lawyers, mediators and financial planners in the divorce process. And it shouldn’t cost an arm and a leg.
Just because divorce mediation is a great idea, and has been a life saver for many couples, does not mean that it can not be improved upon.