New Jersey's Civil War In Divorce Mediation

The first step in the process of despising something isboth parties "lawyer up" during the mediation phase,
to label it. There are countless mediation models, manymany couples opting for mediated solutions are hoping
of which come with their own labels; such as teamto 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 ideologicalthe outset that all they want is what they are entitled
debate between the members of these two camps isto under the law - nothing more and nothing less.
a heated one, which, in many cases, has degeneratedWhile 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 divorceunderstanding of the issues, focusing interests and
attorneys may describe their role in terms of assistingcreative problem-solving, including creative solutions
disputing parties in making their own decisions and inoutside the legal normative box, there can be little
evaluating their own situations. Even when thedoubt 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 theEventually, when they hire independent attorneys to
effect that legal advice and representation are notreview 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 athat point, many are advised by their lawyers that the
practicing attorney. The agreements often go on tomediated agreement negotiated outside the box could
advise or even insist that the parties retain their ownleave 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 observerridiculous amount of time and expense that can go to
should not be able to detect that the mediator is anwaste when there is no way to get across to the
attorney. Interestingly, facilitative mediators who aredelusional party that a marriage of 30 years with
attorneys are indeed practicing law when they aregrossly disparate incomes, six kids, undeniable need
mediating or even discussing the concept, even if youand ample ability to pay might just be one requiring
wouldn't know it by watching them in action. Seepermanent alimony.
Ethics Opinions 657 and 676.If the mediation breaks down due to one of the parties'
Evaluative mediation, by contrast, includes fact-findinglegally indefensible position, wouldn't that unreasonable
and some assessment of how certain factsparty want to know that Rule 5:3-5 (c)(3), which deals
correspond with the law to yield a likely range ofwith 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 inadvanced by the parties" is to be considered by the
the parties having to resort to their "best alternative tocourt in determining the amount of a fee award?
a negotiated agreement;" what Roger Fisher andFinding "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 mediationa 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 evaluative16th century classic, A Book of Five Rings.
approach fails to resolve the dispute, the parties canOne of Japan's most renowned warriors, Musashi's
exit the mediation with the benefit of that attorney'swritings are, by his own description, "a guide for men
assessment of the likely range of outcomes litigationwho want to learn strategy." Few can argue the
would provide. Non-attorney mediators may not includemerits 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 theone'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 tocompanion sword (a shorter sword carried at all times
describe the classic role of the evaluator to includeand 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, usingmake fullest use of your weaponry. It is false not to do
predetermined criteria to evaluate evidence andso, and to die with a weapon yet undrawn." According
arguments presented by adverse parties. Theto Musashis Ichi school, you can win with a long
evaluative mediator's tasks would include finding factsweapon, and yet you can also win with a short
by properly weighing evidence, judging credibility andweapon. In short, "the way" is the spirit of winning,
allocating burden of proof, determining and applyingwhatever 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 puristsMusashi counsels against inflexible preferences.
go on to conclude that the evaluator's tasks not onlyAddressing the best uses of the companion sword,
divert the mediator away from facilitation, but canlong sword, halberd, spear, bow and gun, he said, "You
compromise neutrality in actuality or in the parties' eyesshould 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 andnot knowing it sufficiently well. You should not copy
polarization, which are antithetical to the goals ofothers, but use weapons you can handle properly. It is
mediation. In the evaluative context, some opine, wherebad for commanders and troopers to have likes and
the parties go to the mediation anticipating andislikes. These are things you must learn thoroughly."
evaluation of their case, they are more likely to take aThese are words for the ages. In New Jersey divorce
positional rather than a collaborative approach to themediation, our weapons are the tools or approaches
mediation process.and the enemy is the unresolved dispute. Arguments
Criticismover approach, facilitative or evaluative, are grist for
Critics of the evaluative approach suggest parties arepolarization within our profession. In the context of
more likely to not fully disclose their positions in thatalternative dispute resolution, such a debate is ironic, at
context, even though the information provided inbest.
mediation is clearly confidential and not to be used inFor those of us aspiring to Musashi's wisdom in plying
subsequent proceedings unless it is otherwiseour trade, achieving the "way" to excellence includes:
discoverable. They submit that parties also tend toThinking honestly.
perceive the lawyers' vs. their own roles in a "classicEmbracing continuous training.
light", which some describe as one where the lawyer isBecoming acquainted with every art and approach.
the decision-maker controlling the process and theKnowing the ways of all professions and disciplines.
client is a passive party who does not participate in theDistinguishing between gain and loss in worldly matters.
decision-making process.Developing intuitive judgment and understanding
Facilitative mediation is not without its shortfalls, despitePerceiving those things that cannot easily be seen.
the fact most mediation training under way in NewPaying 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