Whether I've given presentations to lawyers, law students, or the general public, I always receive the same answer when I ask why people call lawyers, which is "to help them solve a problem."
If it's long been known that "mediation offers a more peaceful alternative to traditional divorce negotiations and has been found to achieve higher settlement rates than litigation", would you expect lawyers to provide that information to their clients? If so, think again!
The following is an excerpt from an article titled "Mediation: Negotiating a More Satisfactory Divorce" that was published by Harvard Law School's Program on Negotiation on March 27, 2017 and is based upon the results of a study that was published in 2012:
"Mediation would seem to offer a more peaceful alternative to the traditional adversarial approach to divorce negotiations. And, indeed, mediated divorces, now widespread, have been found to achieve higher settlement rates than litigation...
As compared with those engaged in litigation, participants who engaged in mediation reported that they reached higher quality agreements, as measured by how tailored, fair, comprehensive, and clear the agreement was....
In addition to looking at whether the divorces were mediated or litigated, the researchers examined the negotiating style of the mediators and lawyers involved. In a facilitative mediation, the mediator focuses on helping parties carry out a smooth, open conversation; in an evaluative mediation, the mediator may also evaluate parties’ positions and even propose a settlement. Many divorce attorneys have begun to adopt a more facilitative approach—for example, by trying to de-escalate conflict and improve the quality of the relationship between the divorcing spouses.
Study participants whose mediator or lawyer took a facilitative approach to the negotiation, as measured by their tendency to engage in problem solving behaviors and help their clients focus on interests, generally reported high-quality outcomes.
Overall, the results suggest that couples would be wise to be aided by professionals who believe that reducing conflict and encouraging an open dialogue are more likely to promote a satisfactory divorce than a straightforward competitive approach would."
Notice that it's the facilitative and not the evaluative approach that has been found to lead to high quality outcomes. In fact, according to Harvard Law School's Program on Negotiation, "couples would be wise to be aided by professionals [who took a facilitative approach.]"
If that's the case and if this information has been known for quite some time, wouldn't people consulting with or retaining family law attorneys expect such wise counsel? Would it make any difference if this information were not merely based upon that 2012 study, but from empirical support from nine studies?
The following is an excerpt from Joan B. Kelly's article titled "Family Mediation Research: Is There Empirical Support for the Field?"
“Based on a variety of methodologies, measures and samples, the nine studies described suggested strong support for the use of mediation in family disputes. In public and private sectors, in voluntary and mandatory services, and when provided both early and late in the natural course of these disputes, family mediation was consistently successful in resolving custody and access disputes, comprehensive divorce disputes and child protection disputes. Mediation has given evidence of its power to settle complex, highly emotional disputes and reach agreements that are generally durable.
Settlement rates in custody, comprehensive divorce and child protection mediations generally ranged between 50 and 90 percent, with the exception of the most difficult child protection cases involving parental termination. Contrary to some expectations, mediation worked with angry and high conflict clients and sometimes for those with serious psychological and family problems. What was necessary were well-trained and experienced mediators. Profound distrust and a lack of fair-mindedness on the part of one or both partners more often interfered with reaching agreements than degree of anger (as is true in litigation processes as well).
Client satisfaction was surprisingly high in all studies and settings on a large number of processes and outcome measures. As would be expected, satisfaction was higher when clients reached full agreement as opposed to partial or no agreement. Those who used custody mediation were substantially more satisfied than parents using other court processes. Repeatedly, clients indicated that they felt heard, respected, given a chance to say what was important, and not pressured to reach agreements. They reported that mediation helped them to work together as parents, and felt that their agreements would be good for their children. Mediation clients in the private sector were significantly more satisfied on almost all measures of process and outcome than were those using adversarial divorce processes. This was true even after controlling for any differences between mediation and adversarial divorce samples. Where gender differences in satisfaction were found, the legal context appeared to be an important factor, as were the issues in dispute.”
The type of mediation that Joan Kelly is referencing is facilitative mediation because evaluative mediation is an adversarial divorce process.
"Evaluative mediation is virtually identical to settlement conferences presided over by judges. The mediator helps the parties resolve their disputes by 'judging' the legal strengths and weaknesses of each party’s case. Thus, the mediator focuses on each of the parties’ rights under the law. The mediator assists the parties in evaluating the case and analyzing the costs and benefits of reaching a mediated agreement at that time versus a judicial ruling at a later date. This model of mediation clearly requires the mediator to be involved in the outcome. For the mediator to be effective in this type of mediation, both parties (and their respective counsel, if represented) must perceive the mediator as having a great deal of knowledge and understanding of the law involved in their particular case."
The following information is from the "Maryland Program for Mediator Excellence Mediation Descriptions":
1) 'Evaluative Mediation' is not defined here because we believe it is a misnomer. Evaluation is a technique, not a mediation framework. If a process consists solely of an evaluation and attempts to get participants to settle in line with the evaluation, then that process is not mediation, it is more likely a settlement conference. In a survey asking Maryland mediators how they define their practice, no mediator responded that they define their practice with the term 'Evaluative.'
2) A Settlement Conference is not mediation, although the two are often confused. We define settlement conferences here in order to try to clarify the distinction. Settlement conferences are ordered by the courts in a wide range of civil cases and attendance is mandatory. The conferences usually take place 30-days prior to trial.
Settlement conference neutrals are judges or lawyers who are familiar with the decisions of the particular court in which the case is filed. The conferences are focused on settling the lawsuit. The neutrals discuss with the participants the value range of their case and attempt to get the participants to reach an agreement, which may be a compromise. The conferences usually operate with attorneys present, and the entire process may consist of the neutral meeting solely with the attorneys. The process may take place in separate meetings with each side, as the neutral uses persuasive arguments, and attempts to encourage the parties to come to an agreement within a range of settlement options."
It bears mentioning that "Maryland has won national acclaim for its multi-faceted approach to ADR as well as for the Maryland Judiciary’s leading role in helping to prevent disputes from reaching a stage at which court intervention is necessary."
On April 20, 2017, the Los Angeles Superior Court Family Law Division issued a press release announcing its Voluntary Settlement Project Pilot. It stated in pertinent part as follows: "The Family Law Division of the Los Angeles Superior Court is excited to announce the launch of a pilot project which will provide an opportunity for those with family law cases to participate in court-sponsored Voluntary Settlement Conferences (VSC)."
Now, consider the following quote from the chair of the family law section of the Los Angeles County Bar Association had to say about the Pilot Project:
“This pilot project will provide mediation at an earlier point where there is the real possibility that the parties will still be able to protect and divide the assets which they have worked so hard to achieve and where there is the ability to protect their children from further acrimony of their parents, thereby allowing our Courts to do what is in the best interest of our children. By providing trial judges as mediators for these families, there is the real possibility for settlement, especially when the litigants will be hearing from judges who actually hear all of their similar issues on a daily basis.”
Notice that the chair of the family law section of the Los Angeles County Bar Association is referring to a settlement conference as mediation and trial judges as mediators. To the extent that trial judges are mediators and settlement conferences are considered mediations, we're talking about evaluative mediators and evaluative mediation. This is important because none of the empirical support regarding the benefits of mediation pertains to evaluative mediation—quite the contrary.
Moreover, Joan Kelly referred to “well-trained and experienced mediators.” Do judges become "well trained and experienced mediators" by virtue of being judges?
Consider the following quote from an article titled "Is Mediation Expertise What You Need?" that was published by Harvard Law School's Program on Negotiation on May 31, 2016: "You can be forgiven for thinking that, when it comes to dispute resolution, technical expertise trumps mediation expertise. This reasoning is faulty."
As a matter of fact, "Negotiation Research on Mediation Techniques: Focus on Interests," which was published by Harvard Law School's Program on Negotiation on March 21, 2017, set forth the following:
"From experience we know that a skilled mediator can often resolve conflicts even when she knows little or nothing about the underlying technical issues behind the most complex disputes.
In the first place, a good interests-based mediator will be a fast learner, capable of quickly picking up the technical mediation knowledge necessary to discuss the problem.
More importantly, an interests-based mediator doesn’t need to fully understand the technical aspects of a problem to assess why the dispute is important to each party and which solutions each party might accept.
By beginning with this knowledge and eventually exchanging negotiated agreement proposals, the interests-based mediator can help parties resolve the most complex technical problems."
So, I'm going to ask again, what training have judges received that makes them "well-trained and experienced mediators"?
You might be thinking that possibly lawyers are not advising their clients of the benefits of facilitative mediation because they are unaware of that information. I wish that were true. However, I've been publishing articles on this topic and sharing some of those and other articles with the members of the family law section of the Los Angeles County Bar Association for years through its listserv. In fact, I shared the article, "Mediation: Negotiating a More Satisfactory Divorce" on that listserv the day before information on the Pilot Project was shared on that same listserv. Unfortunately, nobody responded at all.
Willful ignorance is "the practice or act of intentional and blatant avoidance, disregard or disagreement with facts, empirical and well-founded arguments because they oppose or contradict your own existing personal beliefs."
How comforting is it to know that attorneys people seek out to help them solve problems are willfully ignorant of the empirical evidence regarding the benefits of facilitative mediation, as opposed to an adversarial approach?
At this point, the best advice I can offer to people seeking wise counsel is to seek out "well-trained and experienced [facilitative] mediators" before retaining, or even consulting with an attorney. This is particularly true in the field of family law, where the empirical evidence regarding the benefits of facilitative mediation is so clear.