By William M. Levine and Hon. E. Chouteau Levine (Ret.)
Levine Dispute Resolution Center LLC
Westwood and Northampton, MA
Everyone has heard about the “War of the Roses”, even if they have not seen the iconic 1989 movie rendition of spouses gone wild. Millions of real life people have experienced emotional and litigation excesses that have sabotaged any chance of future cooperative parenting, robbed them of their dignity and nearly bankrupted them; less colorfully perhaps than the Roses, but in their own lives, no less tragically. There is a better way that works for most cases, most of the time: divorce mediation.
Mediation is a facilitated discussion in which the parties mutually identify legal issues that require resolution, exchange information and negotiate solutions. Rather than be “opponents” in a court process based on the concept of “winning and losing”, the skilled mediator works with the parties to differentiate between what they want and what they need. Together, they probe those identified interests in a search for overlap and complementary needs, rather than highlighting and exaggerating differences. The result: lower costs, greater privacy, minimized damage, reasonable and reasoned results and, sometimes, even enhanced communications going forward.
This process is voluntary, private and confidential, three attributes that do not exist in court. The engagement begins with the selection of a mediator. The parties may interview one, two or ten mediators. It does not matter. The selection is theirs and theirs alone. So, too is the location, which part of the mediator’s “package”. Whomever the mediator, his or her space will be set up to handle mediating couples comfortably, and not to try cases as with any courthouse. Public exposure is minimized. Instead of airing personal issues in front of strangers, friends and neighbors in a public courtroom, discussion occurs in a private and calm setting. Before the actual mediation starts, people sign a mediation agreement, which in Massachusetts triggers, in turn, mutual promises not to use things that are said, written or offered in mediation against either party in court, should the mediation ultimately fail. People need to speak freely and without fear of giving “ammunition” to the opposing lawyer in court; and mediation provides that.
Divorce mediation is flexible, efficient and cost-effective. There are many different kinds of mediation. Sometimes, the parties will meet alone with the mediator and work that way throughout their case. Other people mediate with their lawyers present and giving advice throughout. Some cases mix the two. Some people want the mediator to focus solely on keeping the conversation progressing and constructive. Others want mediators to provide guidance in the form of “evaluation” of facts and law so that the parties know a lot about “what a judge might do” in their situation. Both may happen; and the parties themselves make these choices.
They also decide together what information they each need to see and review so as to understand the issues and possible solutions. In court cases, rules and customs “entitle” people to get enormous quantities of information from each other and from others, because it could be relevant; but, so often, it just does not matter. Streamlining information exchange is just the start of cost-effectiveness. In mediation, the parties determine the costs that they will expend by the time they use literally and gradually. Gone are the early courthouse visits for preliminary matters that suddenly and shockingly drive up costs, always doubled to compensate two law firms, leaving parties feeling financially crippled before they even start negotiating. In mediation, the costs for one mediator are split, and to the extent that people are relying on lawyers during the process, the role of counsel is supportive and extremely time-limited. In almost all cases, mediation leads to lower, and often dramatically lower, costs.
Divorce mediation sessions are direct, civil and controlled. Most people who come to mediation are neither bullies nor pushovers. They are often upset, confused and uncertain; but they have all begun the process by making a mutual choice. It is to confront their problem with the person most intimately involved in a safe place to talk openly, with genuine feeling rather than strategic displays of emotion, and with a focus on problem solving, instead of “winning”. There are generally few session rules except for basic civility, and this baseline expectation is almost always met. If things veer in an unproductive direction, a skilled mediator will intervene and bring people back to the topic at hand when necessary, without stifling or putting down the genuineness of the feelings expressed. Mediation sessions rarely end prematurely but if they must, they do, to let heads cool and to let both people recalibrate as necessary. In the end, because the parties have “talked it out” themselves, and the agreement is a product of their own work, the people “own” their settlement and generally will fulfill its terms, in the end.
Well-mediated agreements are comprehensive, tailored and technically correct. Court decisions are brief, skeletal and often cookie- cutter resolutions. That is no one’s fault: the courts are overwhelmed by demand, underwhelmed with resources and limited in what the law provides that they may do. Negotiated agreements allow for more creative solutions and cover every issue that the parties wish and need to address. Good mediators will understand applicable law, procedures and taxes. With sound legal advice, the drafting process is just as protective as agreement drafting in anticipation of or in the midst of litigation. If the mediator drafts, he or she crafts “from the middle”, promoting fairness and balance and avoiding drafting as a game of “gotcha”. Qualified drafters are qualified drafters; and mediators who are excellent drafters will “get it right” just as any equally qualified representing lawyer would.
For sure, there are some cases that just have to go to court. These may involve domestic violence, extreme financial dishonesty, completely shattered trust, or legal issues that are so unsettled or amorphous that people just can’t reach agreement without a source of authority – non-existent in mediation – to decide matters for the parties. But these cases are relatively few. Most divorcing couples are unhappy and anxious, but most of them can identify with the desire to preserve the ability to co-parent and grandparent long into the future, to save money and to preserve emotional resources for the many other challenges of a reconfigured family life.
So, is mediation the new normal? The answer is that it is “not yet”, but each year it comes closer. It is a relatively new (three decades or so) discipline, and as word spreads, while court related costs and proceedings spiral out-of-control, this process gains greater acceptance daily. We believe that mediation should, and someday it will become the new normal.
Until that day, how many couples and families will unnecessarily agonize, antagonize and overspend?
For more information about divorce mediation in Boston MA, family law mediation, and other forms of private dispute resolution such as arbitration, please feel free to visit www. LevineDisputeResolution.com, including blog and newsletter archive, which you may receive directly by clicking the RSS button.
William Levine
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