Should Divorcing Couples Who Mediate Be Talking Through Counsel?

For reasons that will become increasingly clear, the public must develop a better understanding of mediation, as it is meant to be practiced.
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I am writing this as a follow-up to my article titled "What Does Mediation Really Mean?" that was published on May 29, 2013.

After reading an article by Franklin Garfield titled "Budget cuts lead to dysfunctional family law departments" that was published in the April 9, 2013 edition of the Los Angeles Daily Journal, I was determined better educate the public about mediation. Please note that the Los Angeles Daily Journal is the premier legal newspaper in California and the articles contained therein are read by lawyers, judicial officers, and many others in the legal community. I also want to point out that Mr. Garfield was selected as Southern California Mediator of the Year in 2013 by the Best Lawyers of America.

In that article, Mr. Garfield gave "practice pointers that may be useful to family lawyers who participate in the mediation process directly." What I read boggled my mind because it was basically contrary to everything I know about the mediation process.

As I mentioned in the above-referenced article, "a significant problem with mediation is the fact that the term itself is vague." While not stated, it was apparent to me that Mr. Garfield was referring to evaluative mediation, which is not really mediation for the reasons I mentioned in my last article on this subject. In fact, his article was so contrary to everything mediators are taught, that I would be surprised to learn that Mr. Garfield ever received any formal mediation training. The following quote from a family law colleague exemplifies my point: "My commitment to the appropriate use of mediation and ADR tools can be discerned from twenty-five years of regular service to the courts as a volunteer family law mediator and settlement officer, my paid neutral work over the same period , and my resolution of matters for my clients over the last 25+ years with mediators, private settlement conference officers, and plain old negotiation, in addition to adversary litigation." This attorney might be very effective at evaluative mediation and for the same reasons would probably make a very good judicial officer. However, wouldn't it be misleading for him to call himself a "mediator?"

By referring to evaluative mediation as "mediation" and giving family law attorneys "practice pointers" to be used in the "mediation" process, Mr. Garfield is creating non-mediation friendly attorneys. We really don't need his assistance in accomplishing that result because it is already a major problem. In fact, when I was interviewed by Jim McConnell for an article he was writing for the Pasadena Star-News about mediation, I specifically used the term "mediation-friendly family law attorneys" for just this reason. We need to stop misusing the term "mediation" because it causes confusion.

In his article, he stated, "As a result of budget cuts, courthouse closures and staff reductions, the family law departments of the Los Angeles County Superior Court have become increasingly dysfunctional. Many divorcing couples now prefer to do their talking directly or through counsel under the auspices of a mediator rather than go to court and let a judge decide."

Mediation is not about "talking directly or through counsel." The parties in a family law case talking directly to each other - what a radical concept! "When people involved in a legal dispute are unable to communicate constructively with each other, how do you think that impacts legal fees? When an attorney "advises" their client not to communicate directly with the other party, who does that benefit? In family law, those clients frequently have children together, whether they are minors or adults. How does such advice ultimately benefit such clients or their family? Remember, like it or not, if there are children of the relationship (regardless of their age), the family still exists after the relationship ends."

In fact, my column in the January/February 2009 edition of the San Gabriel Valley Psychological Association's bimonthly newsletter was on just that topic. That article began as follows: "From my friends in psychology, I know that good communication is at the heart of good relationships. As an attorney, I can tell you that good communication is vital to successful legal proceedings as well. Perhaps nowhere is this more true than in family law. However, in my experience, good communication is all too rare between individuals involved in family proceedings, which leads to a variety of unfortunate consequences." My columns in that newsletter could not be too off the wall, because in April 2010, the California Psychological Association awarded the San Gabriel Valley Psychological Association the award for the most outstanding psychological association newsletter in California, and my column was a named factor in that decision.

For the reasons set forth above and which will become even more apparent in my future articles on this topic, it bothered me so much, that I actually posted sections of the article in discussions on the social media. Let me share with you some of the responses I received:

Gary Direnfeld stated, "What a mind boggling, backwards view of mediation. Good meditation is about resolving conflict and with a good mediator, the parties will learn something about themselves and dispute resolution. The parties will also learn how to aspire to common interests and learn how to generate solutions directed to achieving their common interests. For those who attend mediation or collaborative divorce, their relationship often improves even though there is too much water under the bridge to actually stay together. Sad if that article of misinformation gets around."

According to Carroll Straus, "That is one depressing state of affairs. Really bad -- and far worse than I'd have expected."

Leonard Levy said, "How can someone with this approach to mediation claim to have served the parties' interests? The author loses sight of the fact that the interests of families is best served when self-determination is applied. I mediated a family law matter in which communication of the parties' interests led to reconciliation. This would not have been possible had the author's approach been taken."

For reasons that will become increasingly clear, the public must develop a better understanding of mediation, as it is meant to be practiced.