My last article on mediation, titled "Should Divorcing Couples Who Mediate Be Talking Through Counsel?," was the first of a series of articles on mediation based upon an article by Franklin Garfield titled "Budget cuts lead to dysfunctional family law departments." Again, it is imperative that the public understand the difference between "mediation" and what I refer to as an "alternative form of litigation." Armed with such knowledge, people will be able to distinguish between "mediation-friendly attorneys" and "non-mediation friendly attorneys." In addition, those clients will be able to control their attorneys when they are turning the mediation into an "alternative form of litigation." After all, the attorney works for the client.
Mr. Garfield's first practice pointer to "family lawyers who participate in the mediation process directly" is to "be realistic about the purpose of mediation. In general, mediation is a more efficient and economical road to the same place the parties would end up if they went to trial. The parties sometimes believe that they have no obligation to follow California law in mediation."
Another name for this "alternative form of litigation" is evaluative mediation. In such a process, matters are resolved by virtue of having a "neutral" evaluate legal positions and point out the strengths and weaknesses of each side's case. In essence, the "mediator" is putting on a judge's robe because the "mediator" is helping the parties to resolve the case by pointing out what they believe will happen if the matter were to proceed to court. Thus, it creates winners and losers, just as occurs in matters that proceed to court -- it just does so by getting the parties to agree to what they believe would be the result if the proceeded to court. The win/lose dynamic is not the only problem with evaluative mediation. In addition, a particular judge's credibility determinations, factual findings and exercise of discretion may very well differ from those of the mediator and the attorneys involved.
In his book Mediating Dangerously - The Frontiers of Conflict Resolution, Kenneth Cloke made the following statement regarding bias:
"[T]here is no such thing as genuine neutrality when it comes to conflict. Everyone has had conflict experiences that have shifted his or her perceptions, attitudes, and expectations, and it is precisely these experiences that give us the ability to empathize with the experiences of others. Nor are there any genuine neutrals in courts, including judges, CEO's, managers, and human resources representatives, all of whom have biases and points of view, including the bias of wanting to protect the organization from being disrupted by conflict. Judges have the most intractable bias of all: the bias of believing they are without bias." [emphasis added]
Despite ethical exhortations to objectivity, it's fair to say that each and every judicial officer in family law court has personal biases. In fact, the same exact case might have incredibly different results from one judge's courtroom to the next. Bias impacts the judge's factual findings, which is the great discretion they are given, and how they opt to apply the law. No amount of bias elimination training can educate a judge to forget about their life experiences, assumptions, personal beliefs, and opinions.
Neither the mediator nor the attorneys are the judicial officer who would be hearing the matter and making the decision if the case proceeded to court. Most certainly the mediator, attorneys and judicial officer came from different backgrounds and had different life experiences. As a result, they each have different personal beliefs, values, assumptions, and biases. Therefore, how can a mediator or the attorneys accurately predict the outcome that would otherwise occur in court?
In the second portion of Mr. Garfield's first pointer, he warns attorneys that sometimes parties believe they have no obligation to follow the law in mediation. Of course, they have no such obligation. As I have said before, people may agree on anything that is not illegal or in violation of public policy.
The laws relating to division of property and support and all other laws pertaining to families vary from state to state. Moreover, the laws change over time. One day the laws go one direction and the next day they could change. The most recent example of this change is the fact that same-sex couples couldn't marry in California on June 27, 2013, but they could and did marry the following day. There are currently nine states with community property laws. The remaining states have some form of "equitable distribution" with regard to property division and the laws vary from state to state. In other words, the laws are "arbitrary." What makes one state's laws on these issues any better than those in other states? The issues are the same everywhere. Other than the fact that family law in governed by the laws of each particular state, what makes the laws of any given state appropriate to any given family or situation?
Do you think that attorneys who follow Mr. Garfield's first practice pointer would be "mediation friendly" or "non-mediation friendly?"