Most people are aware that mediation is a process in which usually one mediator attempts to facilitate the two separating parties toward a framework for a settlement. Issues such as custody, parenting time, equitable distribution of assets (and debts) and alimony are addressed in the course of mediation with the goal of arriving at a Memorandum of Understanding (“MU”). At this point, if not before, the mediator should advise the parties to retain separate attorneys for the purpose of reviewing the MU and advising them separately concerning the terms of the agreement and whether they should proceed with the drafting of a Property Settlement Agreement reflecting these terms (plus the usual boilerplate language typical of settlements, but not required in the MU).
In many cases, particularly where the separating parties are able to effectively communicate and have equal bargaining strengths, this traditional form of Alternative Dispute Resolution process is effective. However, there are pitfalls with mediation that should be considered before making the choice:
Unequal Bargaining Skills.
In situations where Spouse A is traditionally the dominant mate, and Spouse B is unable to change the dynamic and, uncharacteristically, assert themselves, the mediation is not likely to result in an equitable and fair settlement. Under these circumstances, the mediator may try to counterbalance this difference in personalities, but they do so at their peril.
The mediator’s essential leverage is gained through the mutual trust earned from the parties, and the mediator achieves this in great part by remaining objective and neutral. Also, trust is built by displaying keen knowledge about the divorce process as well as life issues faced by both parties (parenting, career, health, etc.). It is the mediator’s job to identify the issues to be resolved and facilitate the parties to settle their differences by working together. However, if the mediator attempts to side with one party due to a perceived inability by that party to express their desires and goals, then the objectivity is lost– as is the trust of the other party.
The Mediator is Not Your Advocate.
Because the mediator’s objectivity is key to a successful mediation, he/she cannot give the parties legal advice specific to their interests. In fact, there is great debate over whether a mediator can or should give any legal advice. The safe course is for each party to engage in separate counsel, whom would be available for conferences outside the mediation. Specifically, a party may need to know if their demands (or the other spouse’s position) concerning a specific issue are unreasonable and would likely be rejected by a judge in that jurisdiction if the issue was litigated. This is advice that the mediator cannot provide without ruining their objectivity, as well as credibility.
These are two of the most problematic issues involved in mediation.
In the collaborative process, these potential problems are avoided.
First, each party will retain an attorney trained in collaborative law. After the collaborative counsel interview the parties and conclude that they are good candidates for collaboration, then each attorney signs a participation agreement committing them to collaboration and agreeing not to represent either party should the process break down. The parties each have counsel attend the sessions to ensure that the playing ground remains level for both parties, despite the differences in the clients’ personalities. The attorneys are trained to advocate without inflaming the other party. Also, being on the scene, the attorneys can confer privately with their clients and discuss the relevant legal precedents, and the propensity of our New Jersey judges regarding the issues under negotiation. This may save the parties time, and therefore money, rather than having to suspend a mediation session to then confer with an attorney and then resume at a later date.
Second, consider that every mediation should involve two attorneys at some point, either throughout the process or at the end when a MU is circulated. Involving the attorneys in the collaborative Alternative Dispute Resolution process from the start will likely produce a stronger agreement in less time, because the counsel will have been involved in every step of the negotiations, rather than relying on snippets of the discussions from their untrained client, which can be a challenge to interpret. Moreover, if the attorneys are not involved until after the MU is completed, and it turns out that there are one or more significant issues which do not sit well with either the parties’ attorneys, then convincing the parties to divert from the terms of the MU may lead to harsh feelings and accusations of bad faith. This result will often lead to litigation and a waste of the money spent in the mediation process. Remember, anything discussed or agreed to in the mediation sessions will not be admissible in court.
These two differences are what make collaborative law so effective for many families. The critical goal of the collaborative attorney is to assist the client in arriving at a fair and equitable settlement while maintaining civility, so that both ex-spouses retain enough mutual respect and trust to enable them to converse after the divorce, which is so critical when there children yet to raise and many, many child rearing issues to resolve in the future.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2008