Briefs

By Tom Noble

6116 N. Central Expressway, Suite 922, LB 72

Dallas, Texas 75206

214-692-1888; fax: 692-8577

tnoble28@hotmail.com; www.tnoble.com

Friday, January 04, 2008

Improving Family Law Mediation - Part Two

Let's review. In my last newsletter, I made 5 suggestions for improving family law mediation:

1. Knowing when to mediate.

2. Using Agreed Orders to Mediate.

3. Better preparation by attorneys.

4. Better preparation by the mediator.

5. Mediators should mediate, not arbitrate.

Continuing, if you please:

6. More flexible formats . Who thought up the per-diem system? When I started mediating, the mediator marketplace was more diverse. A healthy tension existed between mental-health-mediators (MHMs), who, as group, preceded attorney-mediators (AMs), at least in my neck of the woods. A number of differences in style between those two groups provoked interesting and constructive debate. MHMs in these parts have gone the way of the American Indian (sans casinos). I'm sure some are still around. Maybe I just don't get out that much anymore.

Formats differed for MHMs and AMs. MHMs used a mediation format in which a divorcing couple would come in for a couple of hours without attorneys. The MHM would discuss their situation and give them some homework (e.g. gathering financial information). A week or so later, they would come in again for a couple of hours and so on and so forth until they reached an agreement. Then, they would take the agreement to their lawyer(s) to "paper the deal". You will notice that lawyers were a minimal part of the process. This process is relatively inexpensive, but, unless husbands and wives consulted lawyers between sessions, which was a variation used by some MHMs, they made uninformed decisions. Even if they consulted with attorneys between sessions, they were still in the thick of it without counsel. That didn't always work too well, especially in complicated cases. And, for that matter, who cares about easy cases anyway?

Some AMs adopted some form of this format and papered the deal as well, attempting to establish one-stop shopping for consumers of divorce-legal services. Unfortunately, it's more than a little unethical for one lawyer to represent both parties in a divorce proceeding in Texas, so one-stop shopping at your neighborhood AM crashed before it got off the runway.

For the most part, AMs never considered the MHM format. Instead, they adopted a format used for litigation and labor disputes. Early on, we could have described this as the "wait until the 11 ^th hour and then bop-til-you-drop" method for resolving disputes: the parties put off mediation as long as they could, and, then, at the 11 ^th hour, they and their lawyers and the mediator got together for a marathon negotiation lasting until the wee hours.

Did you see The Hustler with Jackie Gleason and Paul Newman and Piper Laurie and George C. Patton...err, Scott? Do you remember the scene when Fast Eddie is beating the pants off of Minnesota Fats, and they have played all night, and "the game isn't over until Fats says it's over"? Remember? No? Well, if you don't, it's a classic scene, not to mention a classic metaphor that, at least sort of helps me make my point, which was what? Oh yeah. Now I remember: that's the way mediation used to be. Mediators and lawyers with an unnecessary measure of testosterone went around bragging about mediations going on until 4:00 a.m., like some logical extension of the frat parties they used to cherish. To make matters worse, some enlightened judges actually understood why someone would want to renege on a deal made after 18 hours on a box lunch and too much caffeine. After all, who can make good decisions when her blood sugar is lower than Australia?

Consumers started caterwauling, and saner members of the AMs questioned how healthy a lifestyle they were leading, pulling all-nighters at advanced ages. So, mediation AM-style morphed into the "wait until the 11 ^th hour and then bop-til-you-drop until 6:00 p.m." method for resolving disputes, which is pretty much where we are now. When the parties have run out of money, or the lawyers have run out of patience, they schedule a day of mediation for which the mediator charges a flat fee to each side. And, for the most part, that's the only way we know how to do it.

Don't get me wrong. A day of mediation with two lawyers and an experienced mediator is no one's version of a cheap date. And, sometimes mediating prematurely can waste time. Lawyers should explore less expensive methods of dispute resolution before hiring a mediator. If the lawyers and the parties can meet for a settlement conference, have a candid discussion of the issues, and someone has some negotiations skills, many times they can settle cases without having to spend the parties' valuable resources on mediation services; the art is to know when you need a mediator and when you don't .

My argument is that early intervention is smarter than later. So, why don't we? Surely, we can agree that snuffing out a dispute early-on is better than letting one fester into a conflagration. Assuming that you are with me so far, the question becomes: why don't we employ mediators sooner rather than later (did I already say that?)? The usual response, assuming that lawyer-arrogance is not applicable, is: EXPENSE. If that's the problem, would we not be smarter to use mediation services on an hourly basis instead of a per diem basis ? Why are we stuck in Perdiemville? Mediators and lawyers need to raise their consciousness on this issue and think about more flexible formats: two-hour settlement conferences, telephone conferences to define issues and agree on discovery plans, email conferences about resolving specific issues without court intervention. I could go on. And I think I will.

to be continued

1.The primary exception is the "half-day" mediation, which is the same format cut in half. Many mediators don't like this format because, if the lawyers really expect to settle the case, it simply underestimates the time required to do that.