Previously I blogged on the issue of mediation and my skepticism of the process under certain circumstances. This week there was a spirited discussion regarding the issue of mediation on the New Jersey State Bar Association Family Law Section listserve. As a result, I thought it would be wise to highlight some of the issues again.
To frame the issue, the bigger debate surrounded the practice where a couple goes directly to a divorce mediator or some other trained mediator, without attorneys. Some of the things that raised concern were as follows:
- Some mediators are concerned not whether the mediation is fair, but rather, simply that the parties reached a settlement
- Number 1 would be less troubling, except that many mediators are not telling the party receiving an unfair deal that it is unfair
- Rather, apparently, for many mediator’s, the phrase, "I think you should discuss this issue with a lawyer" is code for the resolution of this issue or this case is unfair. However, people go to mediators to avoid lawyers and/or there is an undercurrent among mediators that divorce lawyers really are not looking out for the parties’ interests. Moreover, some parties think that if a mediator is not putting a stop to the mediation when something is unfair, that it must be fair.
There was also a concern that the imbalance of power in the marriage that naturally is creeping into the mediation is being ignored. A perfect example is in a case where alimony, perhaps permanent alimony is a no brainer, yet the wife is willing to waive it in mediation. Is anyone asking why? Did the husband vow to never pay alimony? Was there a threat to "go after custody" if a spouse sought alimony? Did one spouse say "I spoke to a lawyer who said you weren’t entitled to alimony" as a means to deter the other spouse from seeking it? Was the other spouse given access to money to consult their own attorney? I once represented a woman in a post-judgment matter whose husband would not give her money for the attorneys she wanted to see, only for mediation and then an attorney he hand selected for her to draft the Agreement. It was not shocking that the "mediated agreement" included a waiver of alimony and the child going to school where the husband lives, when the child was of school age, despite the fact that the wife was the primary caregiver.
I have also seen many a complex matter where one party is pushing for mediation and there hasn’t even been the most basic exchange of information at that time, much less formal discovery. I have even seen cases where the party with the documents will not provide them in advance of mediation and will only bring them to mediation and take them with him at the end. The better practice, and the better mediators require, parties to have attorneys involved from the start of the mediation so that both parties are fully informed about the law and the process and so that any imbalance of power can be rectified with an attorney protecting the weaker party.
There is no doubt that mediation and other methods of alternate dispute resolution can be a good thing. That said, I have often seen mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable. The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything. Thus, a method meant to avoid litigation can often create litigation.