| The first step in the process of despising something is | | | | both parties "lawyer up" during the mediation phase, |
| to label it. There are countless mediation models, many | | | | many couples opting for mediated solutions are hoping |
| of which come with their own labels; such as team | | | | to avoid or curtail costly lawyer involvement and won't |
| mediation, transformative mediation, etc. Most of these, | | | | do so until the unsigned memorandum of understanding |
| and their practitioners, can be described as either | | | | (MOU) is delivered. Many parties tell their mediator at |
| facilitative or evaluative in approach. The ideological | | | | the outset that all they want is what they are entitled |
| debate between the members of these two camps is | | | | to under the law - nothing more and nothing less. |
| a heated one, which, in many cases, has degenerated | | | | While facilitative mediators often define their roles to |
| into "I'm right, you're wrong" thinking. | | | | include facilitating communication, promoting |
| Facilitative mediators such as New Jersey divorce | | | | understanding of the issues, focusing interests and |
| attorneys may describe their role in terms of assisting | | | | creative problem-solving, including creative solutions |
| disputing parties in making their own decisions and in | | | | outside the legal normative box, there can be little |
| evaluating their own situations. Even when the | | | | doubt that most parties want to know what the box |
| facilitative mediator is a New Jersey divorce lawyer, | | | | looks like. |
| retainer agreements typically contain language to the | | | | Eventually, when they hire independent attorneys to |
| effect that legal advice and representation are not | | | | review their MOU, some divorcing parties are shown |
| part of the mediator's job and will not be provided, | | | | the reality of the shape of the box for the first time. At |
| notwithstanding the fact that the mediator is a | | | | that point, many are advised by their lawyers that the |
| practicing attorney. The agreements often go on to | | | | mediated agreement negotiated outside the box could |
| advise or even insist that the parties retain their own | | | | leave them with little recourse but to live in one! |
| attorneys to consult during the mediation. | | | | Another issue, particularly in facilitative mediation, is the |
| From a facilitative mediation perspective, the observer | | | | ridiculous amount of time and expense that can go to |
| should not be able to detect that the mediator is an | | | | waste when there is no way to get across to the |
| attorney. Interestingly, facilitative mediators who are | | | | delusional party that a marriage of 30 years with |
| attorneys are indeed practicing law when they are | | | | grossly disparate incomes, six kids, undeniable need |
| mediating or even discussing the concept, even if you | | | | and ample ability to pay might just be one requiring |
| wouldn't know it by watching them in action. See | | | | permanent alimony. |
| Ethics Opinions 657 and 676. | | | | If the mediation breaks down due to one of the parties' |
| Evaluative mediation, by contrast, includes fact-finding | | | | legally indefensible position, wouldn't that unreasonable |
| and some assessment of how certain facts | | | | party want to know that Rule 5:3-5 (c)(3), which deals |
| correspond with the law to yield a likely range of | | | | with the award of attorney fees, clearly provides that |
| possible outcomes, should negotiations break down. A | | | | "the reasonableness and good faith of the positions |
| breakdown of the bargaining process would result in | | | | advanced by the parties" is to be considered by the |
| the parties having to resort to their "best alternative to | | | | court in determining the amount of a fee award? |
| a negotiated agreement;" what Roger Fisher and | | | | Finding "the way" |
| William Ury have termed the "BATNA". | | | | In point of fact, neither camp in the mediation wars has |
| The parties' BATNA following a failed mediation | | | | a stranglehold on the "the way." For guidance, one |
| involves either going to court or to binding arbitration. | | | | may turn to an unlikely source: Miyamoto Musashi's |
| When an attorney mediator taking an evaluative | | | | 16th century classic, A Book of Five Rings. |
| approach fails to resolve the dispute, the parties can | | | | One of Japan's most renowned warriors, Musashi's |
| exit the mediation with the benefit of that attorney's | | | | writings are, by his own description, "a guide for men |
| assessment of the likely range of outcomes litigation | | | | who want to learn strategy." Few can argue the |
| would provide. Non-attorney mediators may not include | | | | merits of strategy in the mediation setting. |
| in their evaluative methodology any legal analysis, | | | | Musashi was an advocate of using all weapons at |
| education or advice without engaging in the | | | | one's disposal. He explained the advantages of using |
| unauthorized practice of law. | | | | both the long sword (worn only out-of-doors) and |
| Members of the facilitative camp are often heard to | | | | companion sword (a shorter sword carried at all times |
| describe the classic role of the evaluator to include | | | | and kept at the bedside during sleep). |
| making decisions and giving opinions with respect to | | | | "This is a truth: when you sacrifice your life, you must |
| the merits and likely outcomes of disputes, using | | | | make fullest use of your weaponry. It is false not to do |
| predetermined criteria to evaluate evidence and | | | | so, and to die with a weapon yet undrawn." According |
| arguments presented by adverse parties. The | | | | to Musashis Ichi school, you can win with a long |
| evaluative mediator's tasks would include finding facts | | | | weapon, and yet you can also win with a short |
| by properly weighing evidence, judging credibility and | | | | weapon. In short, "the way" is the spirit of winning, |
| allocating burden of proof, determining and applying | | | | whatever the weapon and whatever its size - |
| relevant law, rules or customs and rendering an opinion. | | | | facilitative or evaluative. |
| Based upon that initial premise, some facilitative purists | | | | Musashi counsels against inflexible preferences. |
| go on to conclude that the evaluator's tasks not only | | | | Addressing the best uses of the companion sword, |
| divert the mediator away from facilitation, but can | | | | long sword, halberd, spear, bow and gun, he said, "You |
| compromise neutrality in actuality or in the parties' eyes | | | | should not have a favorite weapon. To become |
| by providing an evaluation or opinion of the case. | | | | over-familiar with one weapon is as much a fault as |
| Many argue that evaluation promotes positioning and | | | | not knowing it sufficiently well. You should not copy |
| polarization, which are antithetical to the goals of | | | | others, but use weapons you can handle properly. It is |
| mediation. In the evaluative context, some opine, where | | | | bad for commanders and troopers to have likes and |
| the parties go to the mediation anticipating an | | | | dislikes. These are things you must learn thoroughly." |
| evaluation of their case, they are more likely to take a | | | | These are words for the ages. In New Jersey divorce |
| positional rather than a collaborative approach to the | | | | mediation, our weapons are the tools or approaches |
| mediation process. | | | | and the enemy is the unresolved dispute. Arguments |
| Criticism | | | | over approach, facilitative or evaluative, are grist for |
| Critics of the evaluative approach suggest parties are | | | | polarization within our profession. In the context of |
| more likely to not fully disclose their positions in that | | | | alternative dispute resolution, such a debate is ironic, at |
| context, even though the information provided in | | | | best. |
| mediation is clearly confidential and not to be used in | | | | For those of us aspiring to Musashi's wisdom in plying |
| subsequent proceedings unless it is otherwise | | | | our trade, achieving the "way" to excellence includes: |
| discoverable. They submit that parties also tend to | | | | Thinking honestly. |
| perceive the lawyers' vs. their own roles in a "classic | | | | Embracing continuous training. |
| light", which some describe as one where the lawyer is | | | | Becoming acquainted with every art and approach. |
| the decision-maker controlling the process and the | | | | Knowing the ways of all professions and disciplines. |
| client is a passive party who does not participate in the | | | | Distinguishing between gain and loss in worldly matters. |
| decision-making process. | | | | Developing intuitive judgment and understanding |
| Facilitative mediation is not without its shortfalls, despite | | | | Perceiving those things that cannot easily be seen. |
| the fact most mediation training under way in New | | | | Paying attention even to trifles. |
| Jersey is currently based on the facilitative model. | | | | Doing nothing that is of no use. |
| Despite the urgings of the facilitative mediator that | | | | |