Alternative Dispute Resolution

Family Mediation: A Horse of Many Colors


by Deborah L. Berecz

When The Wizard of Oz was re-released in theaters a while back, I attended. In a scene I had not remembered, Dorothy and her companions enter the City of Oz and are chauffeured around in a horse-drawn carriage. Like everything else in the Emerald City, this horse is unique: it changes colors as it performs its duties—first white, then purple, then orange, then yellow. In considering family mediation in Michigan, I believe the ‘‘horse of many colors’’ provides an apt metaphor. There are different processes operating under the title ‘‘mediation,’’ sometimes bleeding into one another.

This article examines the nomenclature problem experienced uniquely in our state, the differing hues of family mediation, and some of the advantages and disadvantages of each. Specifically, it examines facilitative mediation in both early and late stages, court rule mediation, and friend of the court conciliation. A description of various programs in particular counties and comments on the proposed new court rule for domestic relations mediation are included.

THE NOMENCLATURE DIFFICULTY

The Supreme Court of Michigan inadvertently created a definition problem when it labeled MCR 2.403 and MCR 3.216, its domestic relations counterpart, as ‘‘mediation.’’ The proposed Uniform Mediation Act (1999) provides clarification. It defines mediation as ‘‘a process in which disputants in a controversy, with the assistance of a mediator, negotiate toward a resolution of the conflict that will be the disputants’ decision.’’

As defined by the Uniform Mediation Act, the identifying features of the mediation process are: 1) the mediator assists the disputants; 2) the disputants negotiate a resolution; and 3) the resolution is the disputants’ decision. Clearly, the focus is on the disputing parties as active participants in the process—quite different from the processes under MCR 2.403 and MCR 3.216, whereby counsel for the parties submit briefs and present a summary of the case to a lawyer or panel of three lawyers for evaluation. Although obtaining an evaluation may be a useful tool for dispute resolution, it departs significantly from the dictionary definition, common understanding, and the rule-based meaning of mediation in almost every other state. Yet this is what most Michigan attorneys think of when they contemplate ‘‘mediation.’’ Given this confusing background, what is being done, in the family law context, under the colors of family mediation in Michigan?

FACILITATIVE MEDIATION

In most states, mediation refers to a process in which the parties meet together with a neutral mediator, discuss the issues, develop potential solutions, and attempt to reach agreement on some or all of the issues in dispute in a cooperative, problem-solving environment. When used in Michigan, the tag ‘‘facilitative’’ has often been added to the term ‘‘mediation’’ to distinguish it from court rule mediation. Throughout the remainder of this article, the term ‘‘mediation,’’ standing alone, refers to facilitative mediation.

The goal of mediation is to increase understanding of both parties’ needs, empower the parties to address those needs, and develop agreements that satisfy their needs to the maximum degree possible. The hope is that, by providing divorcing couples a process that allows them to obtain a divorce in a less adversarial manner, they will be better prepared to co-parent in the years ahead and be more inclined to adhere to their agreements.

EARLY MEDIATION

Parties and/or their counsel may choose to mediate at any point in the divorce process. In what this article terms ‘‘early mediation,’’ many couples mediate, over the course of several sessions, prior to, or shortly after, filing for divorce. When parties choose mediation on a private, noncourt ordered basis, they most often employ early mediation. They reach decisions about separating and how the children will be told about the upcoming separation and divorce, discuss the logistics of one parent moving, and discuss how financial obligations will be met while the divorce is pending. In subsequent sessions, they deal with who will file and how (if mediating pre-filing), develop parenting plans, and make decisions about support obligations. During final sessions, they address exchanges of information and documents (discovery), and finally, property division.1

‘‘Brainstorming’’ is the term often associated with mediation, as various proposals for settlement are offered, tweaked, re-worked, rejected, or improved. Throughout the course of mediation, parenting plans are adjusted when necessary as parents experience what works and what doesn’t work for their children and themselves.

Since attorneys do not typically attend the mediation sessions in this model, the individuals consult with their respective attorneys between sessions. The role of an attorney whose client is mediating a divorce settlement is to provide information about the client’s legal rights, explain the ramifications of various alternatives, suggest other possible alternatives to be presented in subsequent mediation sessions, and provide a realistic evaluation of the outcome if agreement is not reached in mediation. Clients who seek such legal consultation are better prepared to effectively utilize the mediation process (provided their lawyers understand the mediation process). The lawyer also helps the client realistically evaluate his or her potential for prevailing at trial and supports the difficult work the client is undertaking during the mediation process.2

When all issues have been addressed and tentative decisions reached, the agreement is reduced to writing by the mediator. This document typically is referred to as a Marital Settlement Agreement (MSA), Agreement After Mediation (AAM), or Memorandum of Understanding (MOU). Prior to signing, parties review the proposed agreement with their attorneys so revisions can be incorporated if necessary. The plaintiff’s lawyer then drafts the judgment of divorce based upon the parties’ mediated agreement.

Advantages

Proponents of early mediation maintain that beginning with mediation sets the tone for the divorce process and provides the basis for optimal post-divorce relations between the parties. In addition, the sometimes unintended escalation of hostilities engendered by the normal divorce process (receipt of pleadings or attorney correspondence, attendance at hearings, etc.) can be avoided if these tasks are accomplished during (or eliminated because of) the open and more relaxed environment of the mediation session.

Further, parties avoid entrenchment in their relative positions. Finally, to the degree that early mediation reduces anxiety typically associated with divorce and establishes an effective, business-like basis for communication, divorcing parents will be better positioned to co-parent in the future. Thus, the hope is that children of these divorces—in contrast to those whose parents seek to destroy each other—will emerge less damaged by the division of their family.

Disadvantages

Opponents of early mediation believe that emotions are too strong and fresh for parties to make rational decisions early in the process. Some maintain that parties are more ‘‘in the mood to settle’’ as they approach the end of the divorce process. Unfortunately, this may be a result of litigation fatigue rather than having constructed an enduring, genuinely satisfactory settlement.

In addition, counsel for parties participating in early mediation may be uncomfortable with their clients directly negotiating with the other party. However, it should be noted that most attorneys with experience in representing clients who are utilizing early mediation maintain that their role in these cases is more in line with that of ‘‘attorney/counselor’’ and therefore more rewarding. Rather than experiencing these cases as a reduction in their role, they assert that they are being more effectively utilized for their expertise to fully inform their clients of their legal rights and advise them of potential outcomes of trial so the clients are adequately prepared for mediation sessions. As an additional benefit, because mediating clients are typically happier clients, these attorneys often report greater satisfaction with their work and fewer collection or complaint problems.

Finally, in early mediation, discovery is one of many tasks managed during the mediation process. Some practitioners prefer to conduct discovery themselves, despite the attendant increase in acrimony and expense that may result.

LATE STAGE MEDIATION

By contrast, in ‘‘late stage mediation,’’ parties and/or their counsel delay entering mediation until fairly close to the date set for trial. Lawyers for the parties may have already attempted to reach a negotiated settlement without success or, as all too often happens, simply may not have had substantive discussions regarding settlement. Hearings may have been held on temporary orders or other matters, and discovery has been completed. When mediation is ordered by the court, late stage mediation is almost always the model utilized.

Usually, lawyers attend the late stage mediation session with the parties. Typically, the mediator will ask each party, or their counsel if preferred, to provide a summary of the case and their position for settlement. Discussions continue with the mediator ensuring that each party is allowed to fully state his or her concerns and desires. Late stage mediation usually involves only one session, in contrast to the typical three or more shorter sessions employed in early mediation. In addition, the use of caucuses (meetings with each party and their counsel separate from the other party and counsel) is frequently employed, with the mediator performing ‘‘shuttle negotiations’’ between rooms until settlement is reached or abandoned.

Advantages

Proponents of this model believe that the parties need time to move beyond the initial shock or anger surrounding the decision to divorce and that once they have, parties will be more inclined to settle. In addition, some lawyers believe that production of documents is more appropriately accomplished through formal discovery than by agreement in mediation sessions. Late stage mediation allows sufficient time for formal discovery to be completed.

Finally, because this process more closely resembles classic dispute settlement (‘‘on the courthouse steps’’), attorneys are sometimes more comfortable with late stage mediation.

Disadvantages

Opponents of late stage mediation assert that, in addition to attending to the usual tasks of mediation, this model adds an additional layer of hostilities generated by hearings, correspondence from opposing counsel, and the cumulative weight of actions taken by one or both parties since filing for divorce. These factors frequently contribute to a less productive mediation session because parties have become entrenched in their positions and view any movement as ‘‘caving in’’ to the other’s demands.

Instead of helping each party understand the other’s needs and concerns, and developing an agreement that optimally meets those needs, late stage mediation is often short-circuited to simply reaching any settlement both parties will swallow. Consequently, an agreement reached in late stage mediation often is experienced by the parties as a less satisfying agreement and is more frequently the subject of post-judgment motions. Late stage mediation may, however, be an effective method of dispute resolution, particularly when parties will not participate in early mediation, leaving clients more satisfied than they are with court rule mediation or trial.

COURT RULE MEDIATION: MCR 3.216

Court rule mediation is a part of the adversarial process and differs from facilitative mediation in several important ways. First, the court rule mandates the lawyers’ attendance at mediation but, contrary to the express goals of facilitative mediation, a party may be excused for good cause shown (MCR 3.216(G)(3)). Second, court rule mediation cannot occur until discovery is complete. Therefore, by definition, this process must occur late stage and is usually conducted mere weeks or days before trial, when settlement negotiations have been unsuccessful. Third, there are additional considerations regarding the mediation of custody and visitation disputes [see MCR 3.216(B)(2),(3)], so functionally, only property division and spousal support issues are referred to court rule mediation. Fourth, a written summary must be submitted to the mediator prior to commencing mediation, which is optional in private mediation. Finally, and most importantly, the court rule mandates, in the event settlement is not achieved, that the mediator submit his or her recommendation for settlement to the parties (MCR 3.216(G)(8)).

Advantages

If success is defined solely as reaching an agreement, court rule mediation is often effective. Similar to the discussions that take place ‘‘on the courthouse steps’’ the morning of trial, the parties are frequently weary of the battle and simply ready to put an end to the emotional toll and expense. Consequently, they may be predisposed to settle. In addition, since discovery is complete by the time court rule mediation is conducted, information necessary for understanding the case and reaching settlement is available—a variable made important by court rule mediation’s use of only one session. Further, an opinion from an objective party may be useful for parties entrenched in their views of the strengths of their case (but rarely appreciative of the weaknesses). Finally, although client satisfaction may be lower with court rule mediation, parties typically find it less traumatic than trial.

Disadvantages

Since court rule mediation occurs after formal discovery is completed, the parties have already incurred much of the financial cost and emotional toll associated with trial. Further, depending on the style of the mediator, parties utilizing court rule mediation are frequently less active in fashioning and shaping their agreement than those using facilitative mediation. Hence, to the degree that parties are deprived of active participation in the generation of an agreement, they may feel less ‘‘ownership’’ of the agreement. A correspondingly lower degree of satisfaction and compliance may consequently be experienced.

In addition, since the goal of court rule mediation is primarily, if not solely, to achieve settlement, parties may not gain the problem-solving tools that usually result from facilitative mediation. In facilitative mediation, it is anticipated that the experience of working through a number of disputes, inconsequential or significant, will serve the parties well in the future, since they will have a format for approaching conflict. For example, often one of the outcomes of facilitative mediation is a formalized set of rules for dealing with one another, including the preferred modes of communication (phone calls, e-mail, faxes, or U.S. mail). Rarely is this level of conflict resolution addressed in court rule mediation, where typically the focus is limited to settlement.

Finally, many believe that the concept of a mediator providing an evaluation of the case is antithetical to mediation because the foundation of the process is the benefit realized from engaging in productive conversation with a soon-to-be ex-spouse, not merely settling the case. There is concern that a neutral must approach a case differently if he or she may be called upon to provide an evaluation at the end of the session. Rather than focusing solely on assisting parties in recognizing, expressing, and accounting for the needs and concerns of both, the neutral must divert some attention to fashioning his or her own construction of a reasonable settlement. Ultimately, what the neutral finds reasonable may or may not bear any resemblance to a satisfying resolution for the parties. Perhaps this is of less concern when issues are limited to property division and spousal support than when dealing with parenting concerns.

There is a particular type of court rule mediation, in use only in a limited area of the state, which is termed mediation despite the fact that the ‘‘mediator’’3 does not meet with the parties. Rather, the ‘‘mediator’’ meets with counsel for the parties, who make brief, informal presentations, then the ‘‘mediator’’ issues a recommendation for settlement. The attorneys then meet individually with their clients, in separate rooms, and discuss the recommended settlement. Following review with their clients, the attorneys meet again with the ‘‘mediator’’ to identify areas of continuing dispute and to discuss other possible recommendations, which are then taken back to the clients. This procedure continues until a settlement is reached or the process abandoned.

The central concern regarding limited participation by the parties is heightened with this process since the parties are not even present in the session. It is likely that both parties will leave the session as dissatisfied as they might when settlement is reached on the day of trial. Thus, they are denied the positive energy that results from facilitative mediation, where they are active participants at the table, overcoming difficult emotions and crafting resolutions that are uniquely theirs.

SPECIFIC PROGRAMS IN SELECTED COUNTIES

As part of the Unified Trial Court Pilot Program, some counties are experimenting with ordering parties to mediation. For example, in Berrien County, upon filing of a ‘‘DM’’ divorce complaint, parties with minor children are ordered to attend a ‘‘mediation orientation session’’ where the mediator explains the process. Parties are then free to choose whether or not to mediate. Mediators are assigned from a roster of trained ADR providers developed by a bench/bar committee. Parties are assessed a charge based upon a sliding scale and the county pays for the balance of the mediator’s fee for up to six hours.

The basis for the development of the program was a belief that parties should be provided the opportunity to learn about facilitative mediation, but should be free to reject the option since mediation must ultimately be voluntary for genuine success to be possible. It was also designed to allow early use of the process so that a tone of cooperation would be fostered from the beginning of the case. Except for the provisions allowing evaluation and recommended settlements, Berrien County’s program is consistent with the proposed new court rule for domestic relations mediation.

In Washtenaw, another pilot county, the court has experimented with ordering parties to attend a group education session to learn about mediation. Parties may then choose to mediate with either a private mediator or one listed on an ADR roster maintained by the mediation clerk. Currently, Washtenaw County is considering incorporating this group education component into the SMILE program offered by the office of Friend of the Court. Washtenaw also has seen an increase in the number of parties and attorneys choosing private mediation prior to, or in connection with, filing for divorce.

In Kalamazoo County, if the parties agree, property division may be submitted to mediation, which is conducted by one attorney or a panel of three attorneys. The session is referred to as a ‘‘hearing,’’ following which the ‘‘mediator’’ must mail his or her written decision to the parties. This process would be more appropriately titled ‘‘nonbinding arbitration.’’ It is extra-judicial, but not client-centered, and is clearly more adversarial than the facilitative mediation process.

In Oakland and Macomb Counties, and to a lesser degree in Wayne County, court rule mediation is almost exclusively the model employed. However, there is some private facilitative mediation and arbitration occurring as well in these counties.

CONCILIATION

This process is being used in varying degrees by Friend of the Court (FOC) personnel in most counties in Michigan. Upon filing of a complaint or motion involving children, parents meet with a Friend of the Court conciliator who attempts to help them reach agreement. If agreement is reached, the conciliator incorporates it into a consent order. If agreement is not achieved, the conciliator makes a recommendation that becomes an order of the court. The parties are free to file an objection to the recommendation and a hearing is then scheduled.

For example, in the 13th Circuit (Grand Traverse, Antrim, and Leelanau Counties) every couple meets with an assigned FOC case manager within 14 days after the FOC office receives a copy of a ‘‘DM’’ complaint for divorce. The case manager employs conciliation and, in almost half the cases, an order for custody, parenting time, and support is entered pursuant to the parents’ agreement. If agreement is not reached, the case manager recommends an order that is subsequently entered by the court. If an objection is filed, a contested hearing is scheduled before the referee or judge.

In addition, the 13th Circuit offers what they term ‘‘formal mediation’’ with another FOC worker (the director or deputy directory typically). Facilitative mediation is utilized in formal mediation and no recommendation is made by the mediator if agreement is not reached. Because of time constraints, the formal mediation offered through the FOC is limited to one or two sessions. If parents choose formal mediation but do not reach agreement, they are returned to their case manager for conciliation.

Advantages

Agreement is often reached through this model. Further, because conciliation is usually provided at no cost to the parties, concerns about parties incurring additional expense are alleviated. In addition, conciliation may achieve some stability early for children and allow parents to obtain some clarity regarding parenting time, custody, and child support.

Disadvantages

Because of the time constraints on conciliators, there is a concern that the conciliation process is short-circuited to merely achieve settlement rather than thoroughly exploring the parties’ needs and concerns and developing conflict resolution skills. As previously noted, this frequently results in a less satisfying agreement that may fail to endure on a long-term basis.

Further, the conciliator, unlike a private mediator, may have an interest in the parties’ reaching agreement because of case-load considerations. Obviously, such an interest may undermine the integrity and neutrality of the process. Even if the conciliator does not have an overriding interest in reducing case load, his or her ability to maintain a focus on fostering the parties’ communication is substantially attenuated by the knowledge that he or she may be called upon to render a decision if the parties do not fashion their own agreement.

In addition, the parties are likely less invested in a process they receive at no charge than they would be if they were contributing financially, however small that contribution may be. Finally, the ability to render a recommendation/order may influence the tone of the sessions as the parties posture their statements more for the purpose of convincing the conciliator to ‘‘rule’’ in their favor than for the purpose of genuinely exploring concerns and needs. Thus, although a ‘‘settlement’’ or order may be achieved, it may bear little similarity to one the parties might have reached in facilitative mediation, and may not have the same effect or durability.

PROPOSED NEW COURT RULE ON DOMESTIC RELATIONS MEDIATION

The Domestic Relations Mediation Court Rule has been substantially rewritten under the ADR revisions currently being considered by the Supreme Court. Whereas the current rule is restrictive, setting up barriers to entry to mediation, the proposed rule is expansive. For example, under the current rule, discovery must be complete and custody disputes resolved by hearing or Friend of the Court mediation before the court may refer a case to mediation. The revision has no such restrictions.

Likewise, succumbing to the frequent misperception that mediation is not cost-effective,4 the current court rule envisions that mediation may be utilized if ‘‘the value of the marital estate and the income of the parties are sufficient to justify the expense....’’ MCR 3.216(B)(1)(b). The revision, perhaps in recognition of the lower cost and added benefits of mediation, particularly when employed early in the divorce proceeding, eliminates this hurdle to mediation. Under the proposed rule, a case can be ordered to mediation ‘‘as soon as reasonably practical.’’ Proposed MCR 3.216(G)(2).

The procedure for ‘‘opting out’’ of mediation is similar in the current and proposed rules: filing a motion and scheduling a hearing. However, there are substantive differences in the bases that justify exempting a case from mediation under the revised rule. Currently, it is sufficient to show that a hurdle referred to above exists (discovery incomplete, cost concerns, custody disputes pending). Under the revised court rule, exemption justifications are based upon factors that would affect the integrity of the mediation session—child or spousal abuse, inability of one or both parties to negotiate for themselves in mediation, one or both parties’ health or safety would be endangered by mediation, or other good cause shown.

The revised rule requires that in order to be listed as a mediator on the roster compiled by the ADR clerk, one must obtain mediation training. The initial training must be supplemented with 8 hours of advanced training every 2 years. In a change from the current rule, which provides that mediators must be family law attorneys, the revision allows certain mental health professionals to serve as mediators provided they receive mediation training. A mediator selected by agreement of the parties need not meet the qualifications necessary to be listed on the court’s roster of approved mediators. However, care should be given in choosing a mediator who has not obtained at least a 40-hour training program approved by the Academy of Family Mediators.

There has been some discussion as to whether an experienced family law attorney should be required to obtain mediation training. If a mediator were simply called upon to determine a reasonable settlement, perhaps experience as an attorney would be sufficient. However, the skills employed during a mediation session could be considered antithetical to those routinely used in litigation. For example, a mediator must be attuned to the subtle communication in a mediation room—body language, tone of voice, and perhaps most importantly, what’s not being said. It requires one to be acutely sensitive, patient, and often quiet—adjectives not frequently showered upon lawyers. In addition, it is challenging at times to remain completely neutral and avoid any overture, however small, which could inadvertently be interpreted as biased.

Conversely, an attorney is expected to be biased in his or her client’s favor and advocate for that client’s position; being neutral is a new endeavor. In addition, lawyers spend years honing skills that are different from those employed to draw out a person’s needs and concerns, step back, and allow the process to unfold while the parties generate their own agreement, and respect the fact that what is workable and reasonable from the client’s perspective may not be the plan we would have suggested. Those skills vary significantly from those used to simply structure a settlement in a particular case. Consequently, it is this writer’s opinion that the training required under the new rule is not particularly onerous and can only contribute to making one a better, more effective mediator.

Under the current rule, each party must submit a case summary to the mediator. This requirement is optional under the revised rule, at the discretion of the mediator.

The revised rule requires the presence of the parties who, under the current rule, may be excused for good cause shown. This change is clearly reflective of the more client-centered approach used by facilitative mediation.

The current rule requires the parties to reduce the terms of settlement to writing and deliver it to the mediator who files it with the mediation clerk. The revised rule does not specify who will draft the settlement agreement, apparently recognizing the standard practice of drafting by the mediator in facilitative mediation.

The current rule assumes that the mediator will file with the mediation clerk a recommendation for settlement in the event agreement is not reached. The revised rule eliminates this assumption and, instead, requires the election of evaluative mediation if the mediator is to submit a written recommendation for settlement of any unresolved issues. Regardless of this election, the recommendation is provided only to the parties and may not be made available to the court.

If the proposed court rule is adopted, courts should give thought to defining what it means to be ‘‘ordered to mediation.’’ It is a generally accepted principle that parties cannot be ordered to settle. For mediation to be truly effective, the process must be chosen by the parties, not forced upon them. Consequently, an order that requires the parties to attend an orientation session or educational program to learn about mediation, but does not require them to employ the process, ensures that parties are informed of the option and able to make a determination as to whether it is appropriate in their case. Without such freedom, the mediation process will be compromised by resistance, and the goals of achieving understanding and cooperation between the parties will not be realized.

The revised court rule likely will broaden utilization of the various mediation options. Because the entry barriers have been lowered, mediation likely will be used earlier in the divorce process in appropriate cases. In that event, mediation can manage appropriate discovery and set a tone of cooperation. However, for those cases that do not lend themselves to early mediation, the option remains to ‘‘plug into’’ the process at any point along the divorce proceeding. For some cases, that may mean employing mediation mid-point, somewhere between early and late stage mediation. For others, only the late stage mediation process will be appropriate because earlier efforts to employ mediation have been unsuccessful. The flexibility of the proposed court rule wisely allows for utilization of the process best suited to a particular case.

INTERPLAY BETWEEN FRIEND OF THE COURT CONCILIATION AND PRIVATE MEDIATION

The introduction of mediation style processes into FOC services has stemmed from the often pressing need to bring some stability into the lives of children whose parents’ marriage is dissolving. It also has led to the bifurcation of divorce into child-related and property-related divisions—divisions that often are not inherently coherent to parents. Thus, in many counties, the FOC is addressing the child-related issues early and private mediation deals with only property-related (and perhaps spousal support) issues. This has resulted in relegating private mediation to mostly late stage mediation, potentially leaving parents in turmoil or limbo about their financial futures for six or more months. Few things are experienced as more stressful than living in limbo about the future, whatever the cause.

Perhaps one of the most meaningful outcomes of employing early facilitative mediation to address all issues is the attenuation of the ‘‘fear factor.’’ The fear factor exists when parties feel the force of the looming great unknown called their future. Everything has been turned upside-down for some of these families. They are concerned about who’s going to live where, asking is the house going to have to be sold, how are the kids going to take this, will their grades plummet, should I put them in counseling, should I move back to where my parents live or change jobs or get a job, how are we going to survive financially? Layer on top of all of these fears the big one: What is my spouse going to do? Is (s)he going to fight me for custody? Is (s)he going to exhaust the savings account, run up the charge cards, or take his/her superior income and leave me high and dry?

The fear factor is most effectively managed through the early use of the open environment of facilitative mediation. People are remarkably self-disclosing and forth-coming when provided a nonadversarial environment to address their fears. Even though intense anger and hurt may abound in the room, when skillfully managed, they often result in parties putting out on the table what each needs, is worrying about, and is looking for. The result is a greater understanding of the milieu into which they’ve been thrust, a growing sense of how to manage it, and a reduction in the fear factor. The bureaucratic bifurcation that results from submitting the children’s issue to FOC conciliation, participating in formal discovery, and months later entering late stage facilitative mediation to address property issues, does not have the same ameliorating, empowering effect.

SUMMARY

There are many variations, or colors, of mediation and several criteria by which to evaluate the processes.

The choice of process will be influenced by the procedure in individual counties, the parties involved, and the comfort level of the attorneys and parties. Facilitative mediation will not always be appropriate or preferred at a given point in time. Although beyond the scope of this article, there are cases for which facilitative mediation is simply not advisable. However, as family law attorneys, we would do well to remember that the number of parties proceeding in proper person in family matters has grown exponentially in the last decade. Many of these parties perceive ‘‘getting attorneys involved’’ as an invitation to a battle they want to avoid, both financially and emotionally.

As the various ADR processes, in all their many colors, become better known and utilized, divorcing parties will be looking for family law attorneys who will understand, support, and guide them in their efforts to use some form of mediation. They will need an ally in achieving a reasonable, dignified divorce. They will seek attorneys who respect their right to be informed and their ability to choose among available alternatives. If they don’t find them, they may well continue to simply proceed without benefit of counsel. Facilitative mediation, when appropriate, affords us the opportunity to restore respect and dignity to the divorce process. Fortunately there are many options from which to choose. Help your clients select their colors well.

Footnotes

1 Most final mediation agreements contain a statement that both parties have provided complete disclosure of assets and liabilities. This is similar to the statement many practitioners routinely include in judgments of divorce, particularly when discovery has occurred informally during the course of litigation.

2 For additional information about the attorney’s role in mediation, I highly recommend Margaret J. Nichol’s article from the January 1997 issue of the Michigan Family Law Journal titled The ABC’s of ADR: Guiding Your Clients to the Use of Divorce Mediation or Arbitration.

3Neutrality or impartiality is inherent in the word ‘‘mediator.’’ In fact, a mediator (or arbitrator) is often referred to simply as a neutral. Since there is no suggestion that the ‘‘mediator’’ is neutral in this form of court rule mediation (in fact, it is the objective to come down on one side or the other rather than facilitating the parties’ decision-making), it may be inappropriate to refer to the third party in this process as a mediator, hence the quotation marks. Perhaps a better term would be ‘‘case evaluator.’’

4 See Joan B. Kelly, Is Mediation Less Expensive? Comparison of Mediated and Adversarial Divorce Costs. Med. Quarterly 8, no.1 (1991).



Deborah L. Berecz
Deborah Berecz is a member in the firm of Berecz & Klawiter, PLC. She obtained her law degree in 1993 from Notre Dame Law School and focuses her practice on isues involving family law, including mediation, divorce and adoption. She serves on the Executive Council of the Alternative Dispute Resolution (ADR) Section of the State Bar of Michigan and is a member of the DR Section of the American Bar Association, and the Family Law Section of the State Bar of Michigan. She is a practitioner member of the Academy of Family Mediators and president of the Berrien Asociation of Mediators.


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