By William M. Levine
After my first divorce mediation training program, in 1995, presented by the American Academy of Matrimonial Lawyers, I was struck by the irony that a peer group based on divorce trial practice would, in the minds of many fellows, undermine its own core values by teaching the principles of facilitated negotiation. I wrote a brief piece, linked here, for the May/June 1995 Boston Bar Journal, Vol. 39, No. 3, titled “Mediation Where the Buffalo Roam”. I was curious to re-read it, having mediated part-time for 17 years and full-time, now for a year plus; and I just did it.
In that article, I asked several questions about divorce mediation practice, to which personal experience now provides some answers. A few of those questions follow, with my present attempt to address them briefly.
How can lawyer-mediators rationalize striving for an agreement with which people “can live” rather than a settlement that is objectively fair?
There are two problems with the question. First, it suggests that acceptance and fairness are mutually inconsistent ; and second, it asserts that fairness is objectively determinable. This implies that two competent actors, with sufficient knowledge, process fairness and free will, are not likely to find a settlement which they can accept that is also fair.
I now see that most people who are motivated to mediate are quite capable of discerning fairness, and when they are unaware of how “the law” or “the court” might interpret fairness, they are eager to learn. If fairness is the range of likely outcome in court, or outside a mediated resolution, most mediating parties are fully capable of learning, discerning and deciding how they might fit into the continuum of predictably “fair” results. And, when they reject the so-called “range of reasonableness”, as they sometimes do, they do it knowingly; and they know they must prepare themselves to address skepticism, or even rejection of the court.
Spending time with divorcing parties as they bravely navigate challenging and painful issues only increases respect for clients’ capacities to be self-interested but responsible negotiators. Are there some issues that are just so complex, technical or legally volatile that parties’ just cannot get a fix on acceptability or fairness? For sure, but they are rare; and responsible mediators will spot those issues and urge those clients towards a more appropriate forum.
Can divorce mediators successfully resolve “power” or “information” imbalances?
Often, but not always. Part of being a mediator is making the upfront judgment of whether or not these kinds of asymmetry exist, and if they are likely to be fatal to the process, or just challenging. In the former case, we need to decline the engagement. In the latter, we create structure, set limits and use our best people skills.
Most clients who wish to misuse mediation do not make much effort to mask it. For those who do, it will become clear in time, and we do have tools: appeals to enlightened self-interest, illustrations of what the litigation system has to offer them in the alternative, and caucusing for (sometimes very) direct talk. For the more vulnerable party, clarity of legal information, enforcement of basic civility, encouragement of open expression and work with assisting or attending divorce counsel helps; and a supportive and comfortable atmosphere serve to allay anxiety.
Can full and fair financial disclosure effectively occur in the mainstream of cases, without authority?
Absolutely, yes. Divorce mediation does not exist in a vacuum. It works in the shadow of the court and all of its rules, including financial disclosure. In Massachusetts, Probate and Family Court Supplemental Rule 410 requires a baseline level of initial information exchanges, with supplementation requirements. Mediating parties are free to narrow or broaden the scope of detail provided; and a fully informed client knows that at any moment his or her spouse may file a legal action at any time, if one does not yet exist, to compel compliance. A well-timed reminder is sufficient to cure information reticence many more times than not. In some cases, people may need to pursue formal discovery, then mediate.