No. 155 the Magazine August/September 1993

Mediation of Separation and Divorce Disputes: A Practitioner’s Perspective

by Hanan M. Isaacs, M.A., J.D.

In 1981, shortly after my admission to the New Jersey Bar, I received training and certification from a nationally recognized association of family mediators. For the past 12 years, I have offered mediation services to separating and divorcing couples as sideline to my divorce and general civil trial practice. In the last two years, my mediation practice has consumed an increasing proportion of my time and attention. In the family law field, alternative dispute resolution finally has arrived and in a big way.

WHAT IT IS: HOW IT WORKS
Divorce mediation, simply defined, involves supervised negotiations in an informal setting. As a mediator, I serve divorcing couples’ interests in developing a comprehensive settlement proposal, which they can take to their outside lawyers for review and finalization. With few exceptions, discussed below, the mediation process encourages parties to sit down and negotiate directly, regardless of how they may get along with one another outside of the mediator’s presence.

Through mediation, divorcing couples seek to negotiate all of the vital and multi-faceted issues underlying the marital relationship, usually focusing on child custody and visitation; child support; spousal support; and equitable division and distribution of jointly acquired marital assets and debts.

THE INITIAL CONSULTATION
In my initial interview with prospective mediation clients, I gather basic information from both parties: the parties’ names and residence addresses; the parties’ ages and health status; the names, ages, and health status of the parties’ children; and the parties’ education, employment and salary histories. I ask the parties to describe their current living arrangements, including custody and visitation details, with particular emphasis on the financial status quo. It is important to learn such baseline data, as it tells me a lot about the parties’ ability (or lack of ability) to work out problems for themselves. It also establishes a point of departure for negotiations that will follow.

In our first meeting, I explain the mediation process and how it differs from and integrated with the traditional, two-lawyer, negotiation model. I explain that, in mediation, the parties are looking to develop “win-win” solutions, so that each party’s negotiating success does not have to come at the other party’s expense. I further explain that in mediation we look for practical and creative answers to short- and long-term problems. Who will live in the former marital residence, and for how long? How will the children’s private school and/or college educations be financed? Are both parties working to their potential, taking into account the child-related responsibilities that each may have; the physical or emotional limitations of one or both of the parties; and either party’s need for additional course-work or vocational training to maximize earning potential? The lost of topics is intended to be comprehensive, so it produces a highly accurate depiction of the parties’ unfolding circumstances.

Next, I emphasize to the parties the importance of maintaining a “win-win” negotiating strategy, which gives them the best chance of respecting and preserving their underlying relationship. The couple’s adoption of this approach often relieves their natural fear of being financially and emotionally devastated in the separation and divorce process. It also demonstrates their desire to be good role models for their children, who are at great emotional risk, no matter how amicable the parties’ divorce may appear to be.

Finally, I explain the mechanics of mediation. I tell the parties that we will meet periodically, depending on mutual availability and their desire to expedite the process or slow it down. I advise the parties that each of them will need to retain separate legal counsel at the end of the process. Outside counsel’s role is to review the outcome of the parties’ mediated negotiations; to ensure that each of them understands the proposed settlement; and to ascertain whether each party accepts the settlement and is prepared to go forward with it in final and legal form. I also discuss the financial arrangements between us.

By the end of the first session, many couples are surprised at the complexity and interplay of their current and prospective living arrangements and of the separation and divorce process itself. The parties learn, often painfully, that what each took for granted emotionally, financially, or in other ways, now will be different, perhaps radically so.

FOLLOW-UP SESSIONS
Once the parties have decided to pursue mediation, I ask them to review and sign a Mediation Retainer Agreement that restates the basic points I made during the initial consultation. They are also asked to complete and return to me a Case Information Statement (CIS) that is used by the Family Court in contested cases. This CIS is used to establish each party’s income, budget, assets and debts. It is helpful because the information is pertinent to the parties’ negotiations and, since outside review attorneys are familiar with the form, it makes their task easier. Moreover, I have found that parties respond well to homework of this kind, as it gets them to focus on practical details and cooperative tasks.

After I have gathered the initial financial and personal data, the parties and I identify all issues that have been resolved between them, as well as all issues that still require resolution. My worksheet originated with a Family Par Early Settlement Panel form in use in some of the counties in which I practice.

Often, couples express surprise at just how many issues require resolution under each category. Under “child support,” for example, the parties must determine, in addition to calculating an appropriate base amount of support, the allocation of financial responsibility for the following items:

• Employment-related day care
• Health insurance coverage, including payment of non covered or unreimbursed medical, dental, orthodontic, optical drug, hospitalization and counseling expenses;
• Private educational expenses for the children;
• Life and disability insurance coverage, including detailed insurance beneficiary and trustee designations; and
• Support-terminating or -reducting events.

As issues get resolved between the parties, I note each agreed-upon item, and we move in to the next area. I take pains to inhibit the parties from putting back on the table issues on which agreement has already been reached, although parties frequently try to do just that. I also ask them to postpone discussion of the “hot button” items until all other issues have been resolved. As in other kinds of mediation and conciliation, it is helpful to gain small agreements between parties, congratulate them on how well they are doing and leave the hard calls for later. While this approach represents solid mediation theory, in practice parties want to discuss (or fight about) items in an order selected by them. The skill of the mediator lies in directing the flow of energy constructively and efficiently. It is easier said than done.

ETHICAL CONSIDERATIONS
There are four major ethical considerations that arise in the mediation setting. First, when a licensed attorney mediates between divorcing parties, does a conflict of interest prevent the undertaking? The short answer is that, as a lawyer-mediator, I do not “represent” either party to the dispute. Specifically, I do not advocate one party’s position over the other. That explanation, however, may not satisfy those who are concerned with the appearance of impropriety or with the perceptions of the parties themselves.

A better answer is that, while mediating parties often do have conflicting interests, they nevertheless are permitted to negotiate with one another in the presence of a third-party neutral. To protect the parties and the mediator, it is essential that the parties acknowledge in writing that the mediator, although a licensed attorney, does not represent either of the parties, nor does he or she represent both of the parties. I also impress upon the parties that they are not to sign any documents until they receive advice and input from outside review counsel. Since I cannot be certain that the parties actually will hire outside legal counsel after our mediation sessions are done, my mediation retainer agreement sets forth the importance of separate legal counsel for each of the parties; that each party plans to hire separate legal counsel; and that I take no responsibility for a party’s failure to do so. Each party gets a fully signed copy of the retainer agreement, as do I.

A second important issue involves mediator-client confidentiality, or perhaps the lack thereof. Except as set forth in the Complementary Dispute Resolution (CDR) Program, 1 there is no recognized mediator-client privilege here in New Jersey, although that privilege has been recognized by statute and case law in other jurisdictions. As a precaution, I advise prospective mediation clients not to divulge during mediation sessions any “bombshell” information that could come back to hurt them later on, such as the existence of a boyfriend or girlfriend (unless that fact is already known to the other party). I also advise the parties that I fully intend to honor their desire for confidentiality, except with respect to information that I am legally obligated to disclose2, and that I will not willingly submit to questioning about the contents of mediation discussions unless both parties consent to the disclosure or I am ordered to do so by a judge. In 12 years of providing mediation services, I never have been subpoenaed to testify on behalf of one or the other party to a mediation. I would be very surprised, and very unhappy, if that were to change.

A third substantial issue involves the parties’ duty of full and accurate disclosure of financial information. I insist that the parties adhere to a policy of full disclosure. I advise them that either party’s failure to abide by that rule could render a subsequent settlement agreement void, in whole or in part. If I believe that one of the parties has failed to make full disclosure, or if a party believes that, the mediation may be suspended or terminated by either party, or by me.

Finally, it is important to maintain strict mediator impartiality at all times. A mediator should have the confidence of both parties, and should be “above” any suggestion of hidden motives, including a financial stake in the outcome. For this reason, the mediator should refrain from accepting future employment from a previous mediation client, whether or not such employment is disclosed to the other party. Turning away potential business is a serious downside risk of becoming a professional mediator. The integrity of the process, however, is too important to be jeopardized by personal financial considerations. By analogy to Rule 1:40-4(b) in the CDR context, my personal rule is that “no mediator may participate…as witness or counsel for any person in the same or any related matter.”3

INTEGRATION WITH TRADITIONAL MODEL
When the parties have reached a proposed agreement on all significant issues between them, I spend as many hours as are needed to draft and issue a letter memorandum of understanding (LMU) that records and summarizes their agreement with one another. The parties jointly may request correction and changes or may return to me to renegotiate one or more points. The parties then submit the final LMU to separate legal counsel. Suggested changes at that point may be agreed upon between the parties, with or without the help of legal counsel or the mediator.

After review with their respective clients, the lawyers will use the LMU as the basis for drafting and circulating a comprehensive Separation and Property Settlement Agreement. I recommend that the outside review counsel include a provision in the parties’ final agreement requiring the parties to negotiate in good faith before returning to court and to consider mandatory mediation and binding arbitration clauses if the clients are willing to commit to those processes in advance.

Once signed, the parties’ Separation and Property Settlement Agreement has the force of law and will govern the parties’ interactions in the event of future interpretation or enforcement problems. It also may be incorporated into the parties’ enforcement purposes.

WHEN TO AVOID OR TERMINATE MEDIATION
Divorce mediation is not a panacea. It does not work for all couples, nor is it always advisable. I do not offer mediation services to parties who disclose a history of domestic violence or other serious abuse between them. I avoid mediating in cases where there is an obvious power imbalance between the parties and am reluctant to mediate when one or both of the parties demonstrate(s) volatile and unremitting anger; extreme unreasonableness; deep and abiding mistrust of the other party, the mediator or both; or a combination of those characteristics. I view mediation as a service with a message: use the process wisely, or stick with the traditional two-lawyer approach. Other mediators may disagree and look forward to handling the ultimate challenge case. To me, it is challenge enough to work with people who are of good faith and who wish to avoid the protraction, expense and constant frustration of the two-lawyer model of adversarial divorce.

CONCLUSION
New Jersey’s family court system is badly backlogged, and the Supreme Court’s existing priority system means that most non-emergent but contested dissolution matters face trial delays of at least a year and in some counties two to three years. Compounding the delay problems, there are catastrophic financial costs and emotional pressures brought to bear on the litigants. Moreover, I have been privy to hundreds of lawyer complaints and discussions over the years (indeed, I have generated my fair share of them) concerning professional burnout associated with contested divorce litigation. Given these facts of professional and client life, I am convinced that separation and divorce mediation will play an increasingly vital role in our dispute resolution system.

As urged upon us by no less an authority than New Jersey’s Rules of Court, “lawyers should become familiar with available alternatives programs and inform their clients of them.” It also is high time for the public to impress upon lawyers and the civil justice system its demand for affordable, speedy and satisfactory methods of alternative dispute resolution, both in the Family Part and generally.