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