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Collaborative Mediation - A Hybrid Solution for Complex and/or Higher Conflict Mediation Cases
hybrid (hbrd): "An organism that is the offspring of two parents that differ in one or more inheritable characteristics, especially the offspring of two different varieties of the same species or the offspring of two parents belonging to different species... Hybrids often display hybrid vigor." The American Heritage Dictionary
In the ongoing discussion of mediation versus collaborative law, what is becoming more apparent is the need for a hybrid approach for certain of cases that borrows from the best of both processes to meet the needs of complex and/or higher conflict mediation cases.
In the article, I will define mediation and collaborative law, and then examine some of the similarities and differences between each process. Following that, I will define "collaborative mediation" and then explain how collaborative mediation can combine the best of both worlds. Lastly, I will illustrate some mediation cases that would benefit from a collaborative approach. Speaking of collaboration, I am grateful to my colleagues, Adam Berner, Carl Cangelosi, Ken Neumann, and Hanan Isaacs, for their input in helping shape this thesis.
Definition of Mediation (from Wikipedia)
Mediation is a form of alternative dispute resolution (ADR), aims to assist two or more disputants in reaching an agreement. The key component of mediation is that whether an agreement is reached, and what that agreement is determined by the parties rather than being imposed by a third party. Writers in the field of mediation normally espouse a code of conduct that mirrors the underlying principles of the mediation process. The most common aspects of mediator codes of conduct include:
Definition of Collaborative Law (from Wikipedia)
Collaborative law was created in the early 1990's by family lawyer Stuart Webb, who saw that traditional litigation was not always helpful to families, and often was damaging. The key document in a collaborative case is the participation agreement. It is a contract signed by the participants, which sets forth the rules for the process. The parties and lawyers agree that:
Similarities between Mediation and Collaborative Law
Mediation and collaborative law have many similarities including:
Differences between Mediation and Collaborative Law
Collaborative law also has some differences from mediation. In collaborative law:
Definition of Collaborative Mediation
In collaborative mediation, the mediator works with the clients during the divorce, but hosts periodic five-way meetings clients and their attorneys at various junctures in the mediation process. In the model that I utilize, the clients are not signing disqualification agreements with their attorneys regarding representation if the case were to go to trial.
The Argument for Collaborative Mediation
Most mediation clients who walk through the door voluntarily are able to reach a voluntary agreement; from my experience, that statistic is approximately 90% (experience shows this statistic to be lower for court ordered mediation). But, there are clients who don't choose mediation because they want either want or need the security of having a legal advisor about specific issues, where they feel a lack of knowledge. Additionally, for those 10% of cases that don't settle in mediation, more closely involving the attorneys might change the result. For some cases that do settle in mediation, mediators may already be practicing collaborative mediation, without using that moniker.
Since the attorney disqualification agreement appears to be a requirement of the collaborative law process, in the off chance that the case does not settle in collaborative mediation, if there is no disqualification agreement, the parties are free to continue using their attorneys in the traditional litigation divorce process, which would not be an option with collaborative law. However, as this reality of divorce is that less than 1% of cases actually go to trial, it is my belief that this particular benefit is most often, a moot point.
Cases That Could Benefit from Collaborative Mediation
Using three typical examples from divorce mediation, I have provided some commentary regarding how each case could benefit from a collaborative mediation approach.
Case 1 - Unequal Earnings and Financial Knowledge: 20 Year-Marriage with two children 12 and 15. The wife has a master's degree in business, and is a mid-level executive with a Fortune 500 company earning $250k a year, with a job that includes a pension, stock options and other non-cash benefits. The husband has stayed at home with the children until the youngest child was seven, and then returned to teaching middle school history, and is making $60k a year. The parties co-parent well together, but the husband feels very insecure about his future, and his negotiation skills, as the wife has been the primary bread-winner, has a stronger financial background, and has managed the money during the marriage.
Commentary: While the parties are cooperative, and in terms of addressing parenting issues, are very comfortable meeting together with the mediator. However, when is comes to numbers, the husband loses focus. Even though the husband could confer with his attorney outside of the mediation process, the mediation would be more productive, if he were to have the attorney present for the sessions regarding support, as well as distribution of assets, to provide legal advice, and for the other side's attorney to hear his attorney's argument.
Case 2 - Unequal Earnings & Education, Unclear Job Prospects, And Possible Mental Health Issue: 3 year-Marriage, but the parties cohabited for 7 years prior to the marriage. They have a 3-year old son. The husband reports the wife is sleeping in great deal and cries all the time. The wife has not worked outside the home since a year after the parties met; prior to that, she worked as a flight attendant. The husband is a research scientist and inventor earning $400,000 a year. He is leaving his wife for another woman.
Commentary: After speaking with the wife about her emotional state, having the client talk to a mental health professional, would be probably be the first step any professional would suggest, if in fact she is sleeping a great deal and cries all the time. It is not hard to understand the situation; the wife she has lost control in the marriage, has no vision of the future, and feels powerless. Actively participating in the mediation process might give her the confidence to move past her hurt. At the same time, the wife probably needs an advocate to bring up issues of child care, job retraining, and spousal support (for a short term-marriage, but a longer-term relationship). Having the attorneys present at the start of the mediation, and moving towards meetings directly with the clients, with the attorneys then involved at critical junctures, would help both parties establish a working post-divorce relationship.
Case 3 - High Conflict: Equal Earnings, but Very Different Views on Custody: 10-Year Marriage, both parties earn similar incomes (approximately $75,000 each) and work for the same company. There are two children - twins girls, age 9. The wife is willing to give the husband alternate weekends, and is firm about the parenting arrangement. Her mother lives in the next door, and helps her out with the girls whenever help is needed. The husband wants to be more than a visitor to his children. The husband is thinking of fighting for custody, if the wife is unwilling to share custody. The parties are coming to mediation because their neighbor, who recently got divorced, recommended it; both parties are very skeptical.
Commentary: While there is a good chance that once these parties enter mediation, they might be able to reach an agreement, neither might want to sign a retainer with an attorney who would disqualify themselves, if the process broke down. The mediator does the clients a service by providing a list of mediation friendly attorney, who might also be able to litigate the matter, if the issue were not to settle in mediation. Having both attorneys present at the mediation to discuss the cost/benefit of a custody battle, and its impact on the children might help move this case towards settlement. Hopefully, once the custody issue is settled, with the assistance of the attorneys, the remaining issues do not complicated, and probably could be addressed through the traditional mediation process.
Many of my clients, even those with significant assets and earnings, have not consulted with an attorney at the start of the mediation process. Some are fearful of attorneys, and others seek to retain control of the process. However, for those individuals with complex and/or higher conflict situations, using a hybrid process of collaborative mediation, can result in a process that both parties might consider more comfortable and comforting than the traditional mediation approach, and result in a written product that has greater "buy-in" for the attorneys representing those clients.
As Barbara Landau stated at the end of her article in Family Mediation News on collaborative mediation - "I would welcome hearing the experiences and successful strategies of other mediators."
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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