What is the difference when a husband and wife are divorcing between (1) using two lawyers and an adversarial process and (2) using a mediator and the collaborative process of mediation? Here is a case study:
Mitch wants a divorce. After almost eighteen years of marriage, he is in a mid-life crisis and wants a major change in his life. He has three children, ages three, six, and eleven. End of summer is here. His wife Leslie is a lawyer but has been staying at home with the children for the last few years. He is a lawyer as well, a successful solo practitioner with his own firm on the East Coast. Mitch has decided to relocate to the West Coast. He has always been generous with his family, but now with the cost of establishing a West Coast office, finding a new place to live, and travelling to see his clients, he would like Leslie to go back to work full time. He also has a new girlfriend, someone he met on a business trip on the West Coast. He is thinking that Leslie can hire a full time nanny to look after the kids and find a new job immediately. Since he has always insisted on paying the bills for the family, he has knowledge of the family finances. He would prefer that Leslie not have information regarding the finances. Leslie, taken by surprise, has a choice: she can either hire the lawyer with the best reputation in the area for being a fierce advocate for his or her clients or she can hire a mediator with the hope of having a cooperative divorce process.
Here is what the process may look like if she were to hire a zealous lawyer. Leslie would make an appointment to meet with the lawyer alone. She would tell him or her the facts of the case. The lawyer would communicate with Mitch 's lawyer on all aspects of the case. The lawyers would shape the process. Both lawyers would begin the formal process of obtaining information called discovery, which involves requesting documents and requiring the parties to sit in face to face questioning sessions called depositions. The lawyers would fight it out on behalf of Mitch and Leslie over all sorts of issues -- custody, visitation, child support, what to do about the house and its contents, who gets to claim the kids as dependents, how to pay for college, how to share expenses related to the children, how to split the assets, and whether this is a case for spousal support. A trial date would be set. A last ditch effort to settle would be made just prior to the court date. An attempt at arbitration would be made, with a retired judge handing down a decision on spousal support and child support. Eventually, after about 28 months and right before New Year's Eve, Mitch and Leslie will sign a separation agreement -- exhausted, stressed, and weary. They will have each spent $100,000 of their savings to pay the best lawyers in town.
Here is what the process might look like if Leslie were to hire an empathetic mediator. Leslie and Mitch would each have a separate and brief phone conversation with the mediator describing the facts of the case. A first mediation session would be scheduled, and in this first session, the mediator would sit with Leslie and Mitch around a small table and describe how the mediation process works. Confidentiality is an important component of the process, unlike in litigation. An agreement to mediate form would be signed. Leslie and Mitch would begin to list the topics that they would like to discuss, such as establishing custody/visitation and a parenting plan, dividing assets and liabilities, figuring out what to do about retirement, insurance, and taxes, deciding whether spousal support is appropriate, and calculating child support.
Leslie and Mitch would pick what topic they would like to discuss at the first meeting, such as custody and visitation, and take turns listening to each other. The mediator would facilitate communication and help empower the parties to create mutually agreeable solutions to defined problems. The first session would last about two hours. They may meet for up to ten 2 hour sessions over a period of a few months. At the end of each session, the mediator would write up her notes into a draft memorandum of understanding (MOU). The notes would include the topics covered, Leslie and Mitch's perspectives, and areas of agreement. This MOU will evolve after each session and, in its final form, represents the decisions that Leslie and Mitch reached in mediation. At the end of 10 sessions, Leslie and Mitch will have spent a total of $4000 or $2000 each to pay for the mediation, excluding a small charge for agreement writing. They will have had control over the outcome. They will have reached important decisions regarding how they will go forward by mutual agreement.
Which approach sounds better to you?
Not every case is suitable for mediation. Mediation is not appropriate in certain circumstances -- for example, when there is a history of violence, abuse, and/or mental incompetence, when one party is acting in bad faith, or when one party clearly cannot advocate for himself or herself.
For a mediation to be successful, both parties need to be willing to have a conversation. The mere fact that the parties are willing to mediate means that they are likely to work together to move toward a resolution. Almost three years ago, I needed a mediator to help resolve a problem with a contractor. Here is how my story unfolded:
My outside generator connected to my gas line failed during Hurricane Sandy and I needed to replace it. I procured the name of a master electrician (Master Electrician #1) who came highly recommended to me from the generator company that maintained my old generator. The company worked with him on a regular basis. I bought a new generator from the company and contracted with Master Electrician #1 to install it.
Six months after the install, the generator company came by for a routine maintenance, found that the electrician's work did not comply with the generator manufacturer's installation requirements, and voided my warranty. Master Electrician #1 responded to the manufacturer's complaints, but I had to pay extra money to the generator company to come out for inspection of his work and re-issuance of the warranty.
After this initial wave of problems, I noticed that my generator was sinking into the ground. My house is at the bottom of a hill and when it rains, lots of water runs down into my backyard where the generator is located. I contacted Master Electrician #1 who thought that the generator could be elevated by placing it on top of a couple of two by fours for an additional large fee. This option did not sound right to me.
I contacted Master Electrician #2, who told me that the generator should have been installed on a proper concrete pad. Moreover, there were new problems with the original electrical work: Master Electrician #1 had failed to meet numerous applicable code requirements. Master Electrician #2 did not want to get involved in fixing the problems created by Master Electrician #1 for various reasons. I contacted Master Electrician #3 who gave me another estimate and another plan to fix the problems.
Throughout these weeks, I had summoned all of my mediator skills to use with Master Electrician #1. I shared my perspective with him as a homeowner. I asked him to share his perspective with me as a contractor. I asked if he would be willing to brainstorm creative solutions with me. I asked him if he would share the cost of correcting the problems with me. He was not willing to talk about any of the issues and problems. He did not want to share any costs with me to correct any of the code violations. I talked with him one day in my back yard about the issues as he was looking at my generator sinking into the ground. He towered over me by more than a foot and he yelled at me in a bullying tone. I asked him if he would be willing to mediate and he said no, he would not be willing.
So I called my friend the lawyer. My lawyer and I drafted a quick letter demanding that he rectify matters and informing him that I would seek all available legal or regulatory avenues to seek redress for the damages I suffered as a result of his failure to properly meet the obligations of our contract. We informed Master Electrician #1 that his corrective work would be inspected by an inspector of my choosing. I really dislike using such strong language. I prefer collaboration -- having a conversation, identifying issues, brainstorming possible solutions, and working together to move toward resolution.
Master Electrician #1 immediately called me and said he would fix the problems. I was concerned that he didn't know how to properly reinstall the generator. Luckily, I had another friend who was a plumber. This friend owned a plumbing and heating company and told me that he had just bought an electrical company with a talented electrician, Master Electrician #4. My plumber friend wrote up yet another plan and estimate to reinstall the generator and to build a concrete pad.
I sent the estimate to Master Electrician #1 to guide him. Master Electrician #1 called me and said the magic words: "That estimate is really reasonable and your friend seems to know what he's doing. Want me to send you a check and your friend can do the work?"
I said yes and asked him why he had not installed my generator properly. He replied that his experience had largely been commercial and not residential. He just didn't know how to install my generator properly. He sent the check, I had Master Electrician #4 do the reinstall, and my generator has been working just fine ever since.
Why wasn't this a case for mediation? While just about any type of civil dispute can be mediated, mediation is not appropriate if one of the parties refuses to come to the mediation table. Both parties in a mediation must be willing to talk. In this case, Master Electrician #1 had no interest in talking. Perhaps he did not want to admit that he could not solve the problems that he had created. Perhaps he was embarrassed. Perhaps there is another reason I'll never know. But one thing I have learned as a neutral mediator is: if two parties involved in a dispute are willing to mediate, they almost always reach resolution.
I successfully mediated a case last week involving frozen pipes bursting, an unhappy tenant, and a landlord. The parties and I talked together for quite some time about all of the issues involved in this case around a table. I summarized the perspective of the landlord and the perspective of the tenant and emphasized to the parties that they did not have to agree with each other. They just had to understand each other's point of view. I also met separately in confidential session with each party. Ultimately, after mediating for several hours, they came to an agreement that I wrote up for them.
The tenant hugged me and the landlord gratefully shook my hand. They both walked away relieved. They appreciated having closure. They both wanted to move on. The resolution was a win/win for each of them. Each party was happy with the mediated agreement and walked away a little bit wiser.
Mediation works in large part because each party has the opportunity to be heard and to be understood -- and to know that what he or she has to say matters. Isn't that what all of us want?
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.