Alternative ways to resolve a conflict


New Jersey's Civil War In Divorce Mediation

The first step in the process ofparties "lawyer up" during the mediation
despising something is to label it.phase, many couples opting for mediated
There are countless mediation models,solutions are hoping to avoid or curtail
many of which come with their owncostly lawyer involvement and won't do
labels; such as team mediation,so until the unsigned memorandum of
transformative mediation, etc. Most ofunderstanding (MOU) is delivered. Many
these, and their practitioners, can beparties tell their mediator at the
described as either facilitative oroutset that all they want is what they
evaluative in approach. The ideologicalare entitled to under the law - nothing
debate between the members of these twomore and nothing less.
camps is a heated one, which, in manyWhile facilitative mediators often
cases, has degenerated into "I'm right,define their roles to include
you're wrong" thinking.facilitating communication, promoting
Facilitative mediators such as Newunderstanding of the issues, focusing
Jersey divorce attorneys may describeinterests and creative problem-solving,
their role in terms of assistingincluding creative solutions outside the
disputing parties in making their ownlegal normative box, there can be little
decisions and in evaluating their owndoubt that most parties want to know
situations. Even when the facilitativewhat the box looks like.
mediator is a New Jersey divorce lawyer,Eventually, when they hire independent
retainer agreements typically containattorneys to review their MOU, some
language to the effect that legal advicedivorcing parties are shown the reality
and representation are not part of theof the shape of the box for the first
mediator's job and will not be provided,time. At that point, many are advised by
notwithstanding the fact that thetheir lawyers that the mediated
mediator is a practicing attorney. Theagreement negotiated outside the box
agreements often go on to advise or evencould leave them with little recourse
insist that the parties retain their ownbut to live in one!
attorneys to consult during theAnother issue, particularly in
mediation.facilitative mediation, is the
From a facilitative mediationridiculous amount of time and expense
perspective, the observer should not bethat can go to waste when there is no
able to detect that the mediator is anway to get across to the delusional
attorney. Interestingly, facilitativeparty that a marriage of 30 years with
mediators who are attorneys are indeedgrossly disparate incomes, six kids,
practicing law when they are mediatingundeniable need and ample ability to pay
or even discussing the concept, even ifmight just be one requiring permanent
you wouldn't know it by watching them inalimony.
action. See Ethics Opinions 657 and 676.If the mediation breaks down due to one
Evaluative mediation, by contrast,of the parties' legally indefensible
includes fact-finding and someposition, wouldn't that unreasonable
assessment of how certain factsparty want to know that Rule 5:3-5
correspond with the law to yield a(c)(3), which deals with the award of
likely range of possible outcomes,attorney fees, clearly provides that
should negotiations break down. A"the reasonableness and good faith of
breakdown of the bargaining processthe positions advanced by the parties"
would result in the parties having tois to be considered by the court in
resort to their "best alternative to adetermining the amount of a fee award?
negotiated agreement;" what Roger FisherFinding "the way"
and William Ury have termed the "BATNA".In point of fact, neither camp in the
The parties' BATNA following a failedmediation wars has a stranglehold on the
mediation involves either going to court"the way." For guidance, one may turn to
or to binding arbitration. When anan unlikely source: Miyamoto Musashi's
attorney mediator taking an evaluative16th century classic, A Book of Five
approach fails to resolve the dispute,Rings.
the parties can exit the mediation withOne of Japan's most renowned warriors,
the benefit of that attorney'sMusashi's writings are, by his own
assessment of the likely range ofdescription, "a guide for men who want
outcomes litigation would provide.to learn strategy." Few can argue the
Non-attorney mediators may not includemerits of strategy in the mediation
in their evaluative methodology anysetting.
legal analysis, education or adviceMusashi was an advocate of using all
without engaging in the unauthorizedweapons at one's disposal. He explained
practice of law.the advantages of using both the long
Members of the facilitative camp aresword (worn only out-of-doors) and
often heard to describe the classic rolecompanion sword (a shorter sword carried
of the evaluator to include makingat all times and kept at the bedside
decisions and giving opinions withduring sleep).
respect to the merits and likely"This is a truth: when you sacrifice
outcomes of disputes, usingyour life, you must make fullest use of
predetermined criteria to evaluateyour weaponry. It is false not to do so,
evidence and arguments presented byand to die with a weapon yet undrawn."
adverse parties. The evaluativeAccording to Musashis Ichi school, you
mediator's tasks would include findingcan win with a long weapon, and yet you
facts by properly weighing evidence,can also win with a short weapon. In
judging credibility and allocatingshort, "the way" is the spirit of
burden of proof, determining andwinning, whatever the weapon and
applying relevant law, rules or customswhatever its size - facilitative or
and rendering an opinion.evaluative.
Based upon that initial premise, someMusashi counsels against inflexible
facilitative purists go on to concludepreferences. Addressing the best uses of
that the evaluator's tasks not onlythe companion sword, long sword,
divert the mediator away fromhalberd, spear, bow and gun, he said,
facilitation, but can compromise"You should not have a favorite weapon.
neutrality in actuality or in theTo become over-familiar with one weapon
parties' eyes by providing an evaluationis as much a fault as not knowing it
or opinion of the case.sufficiently well. You should not copy
Many argue that evaluation promotesothers, but use weapons you can handle
positioning and polarization, which areproperly. It is bad for commanders and
antithetical to the goals of mediation.troopers to have likes and dislikes.
In the evaluative context, some opine,These are things you must learn
where the parties go to the mediationthoroughly."
anticipating an evaluation of theirThese are words for the ages. In New
case, they are more likely to take aJersey divorce mediation, our weapons
positional rather than a collaborativeare the tools or approaches and the
approach to the mediation process.enemy is the unresolved dispute.
CriticismArguments over approach, facilitative or
Critics of the evaluative approachevaluative, are grist for polarization
suggest parties are more likely to notwithin our profession. In the context of
fully disclose their positions in thatalternative dispute resolution, such a
context, even though the informationdebate is ironic, at best.
provided in mediation is clearlyFor those of us aspiring to Musashi's
confidential and not to be used inwisdom in plying our trade, achieving
subsequent proceedings unless it isthe "way" to excellence includes:
otherwise discoverable. They submit thatThinking honestly.
parties also tend to perceive theEmbracing continuous training.
lawyers' vs. their own roles in aBecoming acquainted with every art and
"classic light", which some describe asapproach.
one where the lawyer is theKnowing the ways of all professions and
decision-maker controlling the processdisciplines.
and the client is a passive party whoDistinguishing between gain and loss in
does not participate in theworldly matters.
decision-making process.Developing intuitive judgment and
Facilitative mediation is not withoutunderstanding
its shortfalls, despite the fact mostPerceiving those things that cannot
mediation training under way in Neweasily be seen.
Jersey is currently based on thePaying attention even to trifles.
facilitative model. Despite the urgingsDoing nothing that is of no use.
of the facilitative mediator that both



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