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