Mediation,arbitrationandcollaborative law

Historically, couples had littlechoice in how their mar-

riage was dissolved. Theyeither settled the matter or presentedtheir case to a judge or (believe it ornot) a jury. The direct and indirectcosts of going to court were stagger-ing, and the emotional scars of ahard-fought court battle made it dif-ficult, if not impossible, for couplesto move on with their lives or to

cooperatively raise their children. Inaddition, many couples did not real-ize what it meant to give a courtcomplete decision-making authorityover their future lives.

Although litigation is still anoption today,many divorcing couplesare choosing to make their owndecisions with the help of a trainedmediator or present their case to anarbitrator. Mediation and arbitration

are types of alternative dispute reso-lution (ADR) or methods of resolv-ing a dispute that are less intrusiveand less expensive than litigation.They allow participants to preservetheir dignity, resolve their problems,and, if necessary, design their future

2 FAMILY ADVOCATE

.Ions..

relationship. Mediation and arbitra-

tion offer a cooperative and cost-

effective way to navigate through the

legal system and reach a conclusion

designed to meet each participant'sneeds.

Following are answers to com-

monly asked questions about media-tion and arbitration. For more details,

contact your lawyer or a local medi-ator or arbitrator.

Mediation

1.What is mediation? Mediation is a

process in which a trained neutral

and impartial third party (the media-

tor) facilitates negotiations between

the participants and helps them reach

a settlement that is fair, meets as many

of their individual needs as possible,and is in the best interests of their

children. A mediator, unlike a judge

or arbitrator, has no decision-making

authority, but helps the parties

identify issues to be resolved, develop

options to satisfy each of their interests,

and choose the options that workbest for both of them. Mediation

occurs within the fram.ework of the

JOAN H. MCWILLIAMS

law,but it allows the parties to createsolutions that go beyond legal reme-dies.The issues that can be discussed

are limitless and typically includedecision-making for the children,parenting time or visitation, divisionof marital assets and debts, mainte-nance, and child support.

2. How is mediation initiated? In

most states, the court may ordermediation. Court-ordered mediation

is helpful when couples are unaware

that mediation is an option or when

one person is reluctant to participate.Court-ordered mediation may not

work if either person refuses to nego-

tiate in good faith. Mediation can beterminated in such cases, and the

invested time and expense will be

minimal. Although court-orderedmediation is mandatory, it does not

preclude a hearing before a judge ifall matters cannot be resolved.

Couples also may agree to mediate

a dispute or be compelled to mediate

by a provision in their separation

agreement or prenuptial or postnuptial

agreement. Mediation may be used in

collaborativedivorces in which

the lawyersagree to workcooperativelybut need the helpof a neutral third party to facilitatenegotiations. (For more informationon collaborative divorce, see Pollak,

page 28.)

3. How is the mediator selected?

Generally, the couple and/or theirlawyers select a mediator or the judgeappoints one. The mediator may bea lawyer or a mental-health profes-sional trained in ADR techniques.Many couples use pastoral mediationservices at their house of worship.Participants meet informally with apriest,minister,rabbi,or other religiousleader or use the more formallystructured services of the Christian

Conciliation Services, for example,or, in the Jewish faith, the Bet Din.State judicial departments also offermediation services.

In some cases,participants choose ateam of mediators that brings differentskills to the process. For example, alawyer and a mental-health profes-sional working together can addresstherapeutic and legal problems. AChristian conciliator, a minister, or a

rabbi working with a lawyer can focuson religious and legal problems. Amale-female team might help addressgender differences.

Regardless of background, themediator must be a person whom theparticipants trust and who knows thelaw and can facilitatecommunication,can create a safe environment, and

can translate the parties' discussionsinto an agreement that is under-standable and legally sufficient.

4 .How are mediation sessions struc-

tured?Mediation sessions are struc-

tured to meet the participants' needs.For example, some people workmore productively in several shortersessions, whereas others may preferone full-day session.Lawyers may bepresent, depending on the issues ofthe case,the parties' negotiating skillsor needs, and the participants' prefer-ences. The mediator might meetwith the parties in one room or sep-arate the parties and shuttle backand forth with offers and coun-

teroffers. Financial or other expertsmay be present at the participants'request.

The timing of mediation sessionsis flexible. Some sessions beginimmediately to meet court deadlines.Others are delayed to accommodatediscovery,property appraisals,or busi-ness valuations. To have a successful

conclusion, the participants mustcontrol the structure and timing ofmediation.

5.How do we know what to dis-

cuss? With the help of the mediator,

participants will set the mediation

agenda. At the first meeting, the

mediator often makes a brief opening

statement and explains the process.

The participants may establish ground

rules, and the mediator will help

identify issues to be discussed, finalize

the agenda, facilitate discussions, and

expedite a settlement.

6.Do mediators use diHerent styles of

mediation?A good mediator will beskilled in using different forms orstylesof mediation to help the partiesreach a settlement. For example,when the parties identify an issue that

- --

will require them -;:;work together in

the future, the Ire.L1tor may use an

interest-based sr; of mediation in

which the parti~ ~tify their inter-

ests as opposed LU<heir positions. A

"position" is a de-..:rN result, and an

"interest" is the ~.:ierlying reason a

party wants the ~alt. Using thisform of medw::,,-::, :he parties oftenreach creati'-e... .~~ ":'.5that would be

unavailable m C,G'-.;n.

When the <:-e Fresents issues in

which one F.aIT' gam results in the

other party's ~~ me mediator may use

a settlemellC-f< A' ~"." Using reali-ty-testing tec~'Jes. the mediator

helps the p~ ~ ie"," the facts, ana-

lyze the issue- _-.:1 project the likely

outcome if me ~ <:',':ere presented to

a judge. 'Witb =- ;:,,-le.the parties areotten in se~-_" ms. and the medi-ator shuttles ~- e-enthem.

In eva/r.- ' ~~io/l,the parties

ask the med- - ~ - .malyzeand assessthe strengrt.. ~.;.. e-aknesses of their

legal POSIU- :..--:ually,the lawyers

are presec- _ -.:'.g mediations andthey ask ..h_ - ~~tOr for a writtenevaluation

The ( 'lOdelof mediation

combin~. _ dmg or therapy withtradition... ~ ::.:1Iarion. A mental-

health P='"-- .!L1lworks with theparties c;:" - ~..peutic issues, whilethe med..- - -orkswith them onsubstanU'. ..es.

7. Is ~, confidential? In mos:

jurisdicn. ~~ation is confiden-tial. A reo __ ~ ISnot allowed to dt.~

close 0 _~~cations without th_

consenL F..ro.es.However, com-munie...;:;: :.tt..t are otherwise m-

covera!- : t the law requires -

be rer - _'"egenerally not c~~-fidena -_;. ..1gb confidentiali~ _

me~ ~ t comparable to pIt"""'-

leged - .mications betweep..

clien~ _ _ _ --wr, therapist,or doa,-it doe- - - ..;c a protected emirr ~-

mep.: _ _'::1participants may sh.:

factL- '"""'::"'.arionand emon.

roa&- _ u-ell as explore cre.;.::;;

Opt1 er-Jement.

~AMILY ADVOCATE ~

-

J

A practical journal by the ABA Family Law Section

EDITORIALBOARD

EDITORIN CHIEFWillard H. DaSilva

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ISSUEEDITORSAnn M. Haralambie .Tucson,AZRuth-Arlene Howe' Boston, MA

,

BOARDMEMBERS

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MANAGEMENTEDITORS

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EDITORIALPOLICYFamily Advocate,published by the American

Bar Association Section of Family Law, offers practical,

practice-oriented articles for family lawyers, their clients,

and other professionals involved in divorce, child custody,

adoption, and other family-law related issues.

The articles in FamilyAdvocatedo not expresstheofficial policy of the ABA or the Family Law Section.

They represent the views of thoughtful members of

the bench and bar who are interested in effective

advocacy and the American family.

www.abanet.orgJfamilyJadvocate

3.Can the mediator give legal advice?

No, Even if the mediator is a lawyer,he or she does not represent eitherparty and will not give legal advice.Although the mediator may providelegal information, mediation is not asubstitute for independent legaladvice regarding rights and responsi-bilities,Each person is encouraged toobtain legal advice throughout theprocess and have an attorney reviewthe final agreement (memorandumof understanding) before signing it,

9.What is the attorney's role in medi-

ation?Although participants are notrequired to have attorneys duringmediation, many find consultingwith a lawyer helpful. The attorneywill help the client review the factsof the case, explain applicable law,and help create options for settle-ment. Clients may have their attor-neys present during mediation. Theattorneys will advise clients aboutsettlement options and review thefinal memorandum of understandingbefore the client signs it.

10.What if some issues are not

se"led? Sometimes, couples are notable to settle all issues,For example,they might determine how to makemajor decisionsregarding the childr.enQegal custody or decision-making)and how to share visitation or

parenting time, but they cannot dividemarital assets and debts or agree onmaintenance. In such cases,they maysubmit the agreed-upon issues to thecourt for approval as partial perma-nent orders and ask the judge or anarbitrator to make a final, bindingdecision for any remaining issues.Each party must decide how to handleunresolved issues,but agreeing to sep-arate these will reduce the amount oftime in court or arbitration.

11.How are tentative agreements

recorded? Generally, at the end ofeach mediation session, the mediatorwill draft a memorandum of under-

standing, which reflects the partici-

pants' tentative agreements. Thisdocument will be sent to each partyand the attorneys for review,correction, and additions. Until thememorandum is signed, neitherparticipant is bound by it. At the endof mediation, both p'artieswill receivethe completed memorandum reflect-ing their agreement. They will exe-cute it and submit it to the court tobecome a court order.

12.Can mediation be used in a col-

laborativedivorce?Yes.In a collabora-

tive divorce,the participantshire attor-neys who are committed to resolvingissuesthrough informal methods, suchas the voluntary exchange of docu-ments, negotiation, and four-wayconferences.The goal of a collabora-tive divorce is to settle the case with-

out going to court. If negotiationsfail, a mediator may facilitate furtherdiscussions among the parties andtheir attorneys.

13.What are the advantages and

disadvantages of mediation?Mediation

has many advantages. It is private,

confidential, and less expensive and

less time-consuming than litigation.

Although it is not therapy, it allows

participants to separate emotionalfrom substantive issues and, ideally,

to resolve both. This can be empow-

ering. By focusing on the future

rather than the past, participants can

design their postdivorce relationshipand reach a positive result that is

appreciably better than a court couldorder because the participants makeall decisions themselves.

There are, however, risks. For

example, mediation is based on fulland fair disclosure. This works in many

cases but will not work if one partici-

pant withholds information or under-

values assets. A competent attorney

can remedy such a situation by con-

ducting thorough discovery and per-

forming necessary due diligence.Mediation may not be appropriate

for the mentally or emotionally inca-

pacitated or anyone unable to nego-

J

tiate due to substance abuse, a powerimbalance, or domestic violence.

Again, a good lawyer can representsuch a client and attend mediation

sessionsto protect the client's rights.Finally,mediation will not always

result in settlement. When this hap-pens, the parties may terminatemediation and select another form of

dispute resolution.

14.Is mediation really worth

trying?Yes. Mediation allows the par-

ties to retain decision-making. If the

process does not work, the partici-

pants may proceed to litigation orarbitration. When it is successful,

mediation provides an eloquent way

for participants to solve problems,focus on the best interests of their

children, and design their future

interaction. Ideally, each party will be

heard, and together they will arrive ata settlement that meets their individual

needs and the needs of their particular

situation. Mediation allows the parties

to step away from a difficult situation

with grace and dignity.

Arbitration

1.What is arbitration?Arbitration is

a process in which one or more neu-tral third parties, the arbitrator(s), areselected by the participants to heartestimony, take evidence, and issue adecision or award,which mayor maynot be binding, depending on theauthority granted to the arbitrator inthe arbitration agreement. The arbi-trator may be asked to divide maritalassetsand debts and determine main-

tenance. In somejurisdictions, arbitra-tors decide child-related issues,including decision-making aboutchildren or legal custody, parentingtime or visitation, and child support.The arbitrators may decide otherissues at the participants' direction.

2.How is arbitration initiated?

Although arbitration may be court-ordered, in most cases the partiesagree to arbitrate a dispute or theoption has been included in a separa-

tion agreement or a pre- or postnup-tial agreement. In most jurisdictions,an agreement to arbitrate will beenforced unless grounds exist forrevocation of the contract.

As a general rule, the parties, withthe help of their attorneys, will iden-tify the issues to be arbitrated. Thesemight include all issues in disputeor only those left unresolved aftermediation. The arbitration agreementshould identify issues to be decided,grant decision-making authority tothe arbitrator, and state whether the

award will be binding. If issues arenot carefullyspelled out in the agree-ment, one party may later argue thatthe arbitrator exceeded his or her

authority.

3.Who selects the arbitrator? The

participants andlor their attorneysselect the arbitrator. The choice will

depend on the issues to be decided.For example, the conflict mayrequire an expert in a particular areaof the law or a mental-health profes-sional adept at dealing with child-related issues.Some participants mayprefer to use religious panels, suchas the Bet Din or ChristianConciliation Services.

4 .How is arbitration structured? The

arbitration hearing is much like acourt hearing, although less formal.

Generally, each party or lawyer

presents an opening statement. The

petitioner (person initiating the arbi-

tration) presents his or her case, and

the respondent (the other party)conducts cross-examination. The

respondent then presents his or hercase, which also is subject to cross-

examination. Then the participants or

their lawyers make closing arguments.

5.Is arbitration confidential? No.

Unlike mediation, arbitration is not

confidential. However, the partiesmay provide for confidentiality intheir agreement and may limit theform and content of the arbitrator's

decision. Although the arbitration

hearing may be closed to third parties,the proceeding often is recorded, anda transcript of the hearing may besubmitted to the court. The arbitra-tor's decision will be submitted to the

court and, if approved, will become acourt order.

6.What is the attorney's role? The

attorney assists in selecting the arbi-

trator and helps formulate issues to

be presented in arbitration. He or she

drafts the agreement to arbitrate. The

attorney works with the client to

gather facts, review applicable law,

complete discovery, and submit

documents to the arbitrator. During

Mt,~ iationCf: J1-.-Do"sD Emphasize self-determination.

D Produce voluntary agreements by

the part es.

D Conton 'ather than inflame the

conflicT

D Focus 0'" '''e needs of children.

D Gene'a . cost less than litigation.

D Fosler 0 cooperative relationshipbe"" ~- oorents.

D Reso .e 0 sp"Ies more quickly than

liti9a- :-

D proc.=: ~::'e oersonalized"

D Ge-;.':: . ':S.' in parents havingme'e: :.::--::c' ;th their children.

o ~es_' - - g"'er rates of parentil'g-p::- ::-:: :, d-supportcomplial'ce

arbitration, the attorneys question

and cross-examine the participants

and present opening and closing argu-

ments. The attorney also will prepare

postarbitration motions to vacate orchange the award or the arbitrator'sdecision.

,

7. How does the arbitrator communi-cate the decision?The arbitrator issuesa written decision or award. Unless

the participants have agreed other-wise, the award will be binding andwill be submitted to become a court

order. Either party may request or thecourt may order that the award bevacated, modified, or corrected if it

fails to meet certain statutory criteria.

8.What are the advantages and dis-

advantages of arbitration? Arbitration

has many advantages.It isprivate, eas-ily scheduled, and not likely to becontinued. The parties may select anarbitrator(s) who is well suited bytraining and experience to their par-ticular case, and the process is effi-cient and more relaxed than a court

hearing. Unless the parties agree thatthe award will be nonbinding, arbi-tration results in a final decision with

limited rights of review.On the downside, arbitration

should be approached cautiouslybecause your right to have a courtreview the decision is limited. In

some cases, finality is less importantthan a right to appeal the decision.Likewise,unless prearbitration proce-dures are limited by the parties,preparing for arbitration can be astime consuming and expensive aspreparing for trial. The right of dis-covery alsomay be limited, strict rulesof evidence may not apply, and theweight of evidence may be differentfrom that of a court hearing. Finally,the parties will have to pay thearbitrator, whereas they would notpay a judge in litigation.

~ Is arbitration worth trying?Arbitration offers great advantages ifappropriately used. The parties must

6 FAMILY ADVOCATE

decide if the advantages of arbitration

outweigh the disadva~tages.

Conclusion

Although parties may not choose to be

divorced, they may choose the method

by which they obtain their divorce.Alternative methods of dispute resolu-

tion can save money and time, reduce

stress, and create lasting solutions that

benefit both parties and their children.

ADR makes good sense. .Joan H. McWilliams is a lawyer-mediator

in Denver, Colorado, and the author of

Creating Parenting Plans That Work

(Bradford 1998). Portions of this article were

adapted from the chapters she wrote in the

Colorado Family Law and Practice and are

printed with the permission of West Group.

Glossary ofADR TermsArbitration: is a form of alterna-

tive dispute resolution in which the

parties hire a neutral third party (or

parties) to hear testimony, take evi-dence, and issue a decision oraward.

Collaborativelaw: a form of

alternative dispute resolution in which

each party hires separate legal coun-

sel who reject litigation as an optionand are trained and committed to

negotiating a settlement agreement.

Consulting counsel: is a lawyer

hired by a party about to begin medi-

ation. The lawyer's role is to answer

questions, address concerns, and pro-

vide the party with a solid under-

standing of the legal foundations.

Mediation: is a form of alterna-

tive dispute resolution in which the

parties hire a trained, neutral, and

impartial mediator to help them nego-

tiate a mediation agreement.

Mediation agreement: is an

agreement reached by the parties that

forms the basis of a settlement agree-

ment and, when accepted by thecourt, becomes a court order.

Legal advice: may only be pro-

vided by a lawyer. It is the translationof information and the law into a rec-

ommended course of action.

Legal Information: may be pro-

vided by anyone who can read the

law and report what it says.

Renuptial agreement: (also

called antenuptial agreement)-is a

written agreement signed by both par-

ties before a marriage to provide for

advance decision-making for future

contingencies and events. These

agreements are generally entered into

to protect the property or inheritance

rights of one party or to protect one

party from the liability of the otherparty's debts.

Review counsel: is a lawyer

hired by a mediation participant toadvise the client about settlement

options and review the final memo-

randum of understanding before the

client signs it.

Settlement agreement: is an

agreement that is reached by the par-

ties to resolve financial and custody

issues in dispute. .