Part Three - The Need for A Better Method -- Mediation

COLLABORATIVE LAW AND THE HISTORY OF METHODS OF RESOLVING FAMILY LAW CASES—by Leonard M. Roth and Jack H. Emmott III

It takes little time for the sensible, rational client to realize that the adversarial method of handling Family Law disputes tends to disenfranchise clients in their own cases. Arbitrary rules and regulations impede a client-centered resolution of the case, even though it is the client's case. It is the client that must go forward, living with the decisions made by others, decisions that are light years away from the results intended when the process of litigation began. Though very helpful, mediation, especially mediation on the eve of trial, proved not to be the panacea envisioned in the clients' fervent search for a fair, voluntary, intelligent and equitable settlement of their cases. The fact is that the methodology of mediation is not set and different mediators mediate differently. Most mediators use the caucus method where the parties go into separate rooms with their attorneys and hardly ever see or talk to each other during the process. Many times the settlement papers are signed separately and they leave separately. If an impasse is reached, there may be parting angry words, but the process drives the parties further apart. In caucus, the mediator travels back and forth for a half day or a full day session talking clients into or out of positions the mediator believes to be irrational or untenable in court. This may be a good thing because the client needs to obtain that studied second opinion that may or may not coincide with what his or her attorney has been telling the client all along. But, on most occasions, the mediation involves subtle or not so subtle forms of intimidation or negotiations go into the middle of the night, when neither party has a clear sense of what they are agreeing to in the mediation. One thing is clear: litigants rarely understand the legal system and the lawyers and the mediator are in positions of great power within that system. It is very hard to feel good about any settlement results under those conditions, because the clients are merely corks on the open sea, completely out of control. Once the agreement is codified in a mediated settlement agreement and filed with the court, it becomes a virtually unbreakable Order of the court. As a Mediator and Family mediator, I always tried to impress on the clients that the elusive "day in court" they were attempting to achieve would probably never occur. I would tell them myriad variables impact on what we deem to be justice. Time to "tell your story" is limited. Mystifying, but long-standing rules exclude necessary testimonial and documentary evidence. Human biases in all the participants in litigation abound and can affect the final result. Your dirty laundry, mental and emotional histories, and financial information are divulged in the publicly-accessible courtroom. Legal procedures limit, rather than open up the process. Your testimony is strictly regulated, interrupted and requires great concentration. You are intensely cognizant that every minute is justifiably being billed for by your attorney, even if nothing is being done for many, many hours as you are told to wait your turn. Your case may be won or lost on a misinterpretation of a word in testimony and your understandable fright on the witness stand may be perceived as untruthfulness. So, even though all that I told the litigants was absolutely true and even though the clients needed to know the truth, and even though I never mediated into the early morning hours, some might say the truth intimidated the clients into a settlement. No litigant or attorney, while in the process of litigation, can change the legal system for their case. That is for our legislature or higher courts. You cannot legitimately demand special treatment from your attorney or the court. The system exerts pressure on litigants to get in line and square pegs have no chance in a round hole process. Clients would beg me to get them out of the process. Stop the world, I want to get off. But, this world has few off ramps. Your choices: trial or settlement. Settlement on abhorrent terms is usually the only fast track out of litigation. Settlement stopped the present pain. Settlement stopped the present financial freefall of litigation expenses. Settlement stopped the present emotional pressure of the system. Settlement is usually unsatisfying an hour later, requiring further attempts to return to the legal system to attempt to right the wrongs done in trial or settlement, which is usually difficult. In September of 2003, finally, a legal off-ramp from litigation was created. But, that is another story.