Mediate: Don't Litigate

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Sheree L. Hoffman

It was a winter evening. I had just returned to the office after completing a two day divorce trial. I was tired and frustrated with the system.

This case involved the typical property division issues: a 5,000-square-foot house in Memphis, a Florida condo, three late model automobiles, other investments in both cash and real property, a huge accumulation of personal property which included silver, artwork and even a parrot that could say "Go Tigers!"

What bothered me about this case, however, was the children, ages 7 and 12. The parents had been fighting over custody of these children for over two years. There were allegations of neglect and sexual abuse of the children by each parent. The court had appointed a guardian ad litem to represent the interests of the children and to report back to the court. The Department of Human Services was ordered to complete an investigation. There was no doubt these children were being used and whether intentional or not, it was clear they were suffering. The conflict between their parents would cause both immediate and long term damage.

At the conclusion of the trial, I could honestly say I did not believe either of the parents were the monsters the attorneys had worked so hard to portray. What I really saw was two loving parents who were both frightened to death that one of them would "lose" the children.

Each was willing to spend thousands of dollars on attorney fees and each was willing to put the children through session after session of conferences with psychologists and social workers to "win." Each parent was saying horrible things about the other to make sure the other parent would lose custody the children. I knew in my heart there had to be a better way to resolve these disputes. In the summer of 1994, I found that way.

It was during conversations with a former classmate who was practicing law in San Francisco, that I first learned about mediation. She related to me her first hand experience with mediation. She convinced me this could be the answer to my own professional frustrations.

I jumped at the first opportunity to take a mediation course in the area of family law. That course and the instructor had a profound influence on my career. I have been providing mediation services since that time.

You may have seen the bumper stickers which say "Mediate: Don't Litigate." So exactly what is mediation? Simply stated, mediation is the use of an impartial third party (the mediator) to help two or more individuals work out a mutually acceptable agreement to resolve a dispute. Divorcing couples can certainly benefit from choosing mediation over litigation, but mediation can also be used to resolve business disputes, employee grievances, personal injury claims, insurance disputes, and medical treatment disputes to name a few.

The techniques used during the mediation process may differ depending on the type of dispute, but the overall strategy and the goal is the same. That is to give people a more effective, faster, less costly and less antagonistic means of settling their differences.

What happens if you decide to go to mediation? Typically, the disputing parties will meet simultaneously with the mediator to discuss the issues and problems. When the mediation involves a business dispute, the individuals or company representatives will usually bring their attorneys with them to the mediation. In divorce mediation, often the individuals will meet with the mediator without attorneys. This is not to say that people in divorce mediation should not be represented by attorneys. However, typically the attorneys are used on a more limited basis for consultation between mediation sessions and to review the final agreement reached.

During the first mediation session between a divorcing couple, the process and the expectations of the mediator are discussed. Every mediator has basic rules of conduct for the participants to follow and often these rules are included in the Agreement which the participants sign with the mediator. It is my experience that the following rules are common to most divorce mediation:

  • If the individuals have already filed a complaint for divorce, all further litigation must stop. In mediation there are no surprises for either of the individuals. Any contemplated legal action will be discussed and the documents reviewed prior to filing with the court ·
  • All discussions in mediation are confidential. The mediator can not be called to testify [in] court.
  • All financial information must be disclosed and produced by the participants. If either participant refuses to cooperate, the mediation may be terminated by the mediator.
  • The mediator may give the participants legal information but can not give legal advice. The participants are encouraged to consult with their attorneys for individual advice between sessions.

Mediation works because people are in a safe environment where they can express their needs as well as their frustrations to each other and can retain control of the decision making. A good mediator wears many hats throughout the mediation including discussion leader, empathetic listener, and referee. After years of working as a trial lawyer, I am convinced that most the time, people want their day in court simply because they want and need to be heard.

However, the average person, unfamiliar with the court system has an idealistic and perhaps unrealistic view of what really happens. Some common misconceptions are:

The judge will see things my way.

People in conflict want to tell their side of the story to an impartial and learned individual. They want sufficient time to tell that person about what he/she clearly believes is the absolute truth. They believe so strongly in their position that they know the judge will surely agree with them.

This is a great fallacy of litigation. Remember the other party also has the same belief and expectations. One of the most difficult lessons for me to learn as a lawyer has been that there is not always a way to right every wrong which occurs in our society and furthermore, what may seem fair and what actually happens in the courtroom are often miles apart from each other.

The judge is rational, objective and neutral.

Before I get myself into trouble with our judiciary, let me explain that statement. Judges do honestly strive to meet those criteria when rendering decisions. However, judges are only human, and all humans are the product of their past and present experiences. Judges have great discretion in rendering decisions and most lawyers will tell you that every judge has his or her particular bias beliefs about certain issues.

Once we go to court, it will all be over.

In most courtroom battles, the decision rendered by the judge is probably going to make at least one of the participants angry. Someone wins the battle, someone loses.

The loser thinks the judge didn't make the right or fair decision and is angry enough to spend more time and more money [to] appeal that decision to a higher court.

Or maybe one of the lawyers thinks the judge committed a legal error and the case should be appealed. Often, the loser refuses to obey the order of the judge. Enforcing court orders can be very costly.

In mediation, each has an opportunity, unrestricted by rules of evidence and procedure, to assert his or her point of view, discuss what each believes is fair, identify their personal needs, and most importantly if there are children, maintain, rather than destroy their future relationship.

[I] firmly believe that individuals can and will, if given the opportunity and the appropriate setting, choose to make their own decisions about their money, their property and their children. Mediation dissolves the environment of aggression, defensiveness and the fear [of] losing and replaces those negative feelings with positive feelings of personal responsibility and mutual understanding.

Best of all, addition to resolving disputes, mediation can, for many, actually heal and provide hope. ___________________________________________________________________________________________________________

Sheree L. Hoffman is a Memphis lawyer and mediator. She can be reached at (901) 754-9970.