Readers of this blog who are interested in using mediation in their own divorces are cautioned that discussions with divorce attorneys may prove completely misleading. That is because the North Carolina courts and bar association have created a version of “mediation” that bears little resemblance to the real thing. I have met many clients who went for a consultation with an attorney, asked about mediation and were told, “Don’t worry, we do mediation as part of the litigation process.” So I thought it was time to explain the difference between what I shall call “real mediation” and “phony mediation”.
A little history: Divorce began changing between the 1950’s and 1970’s in dramatic ways, and by the end of the ’70’s, almost every state had adopted some version of no-fault divorce. This trend was a response to changes in marriage itself, in which the objectives of marriage became less about economic security and more centered on the love and passion between a couple. This new law allowed people to divorce without having to prove that their spouse had done something terrible. This change in law permitted unhappiness in marriage as a basis to leave the marriage.
The very purpose of litigation is to prove who is at fault. In criminal cases, the prosecution is trying to prove that the defendant is guilty—at fault for the crime. And in civil litigation, the plaintiff’s lawyer is trying to prove that the defendant is at fault, only instead of calling the civil defendant guilty, we call him liable. In either case the entire logic of the adversarial legal system rests on the doctrine of fault. So what does it do with no fault divorce in which there is no fault to prove? Divorce practice, along with real estate closings and personal injury practice was the bread and butter, if not the life blood of most lawyers in small firms. The profession was hardly about to let go of one of its biggest cash cows. So now the contest shifted to kids and assets. Complicated procedures developed to prove who would control the children and/or deserved to get more money or more property.
When I started practicing law in the late seventies divorce litigation was in full flower. It was not unusual for divorces to take three or four years to get through the court, and it was not unusual for legal fees to mount into the tens of thousands as attorneys prepared their clients’ cases for trial. For too many people, notwithstanding the advent of no-fault divorce, divorce was an utter horror.
What made it even worse was that the entire system was based on the myth that there was going to be a trial in which the judge would decide on the kids, money and property. It was a myth—if not an outright scam—because just before the trial, after running up an often crushing legal fee, the lawyers would sit down with the two clients in a meeting called a “four way” and negotiate a settlement. And if the lawyers had trouble, the judge assigned to the case would call the lawyers in for a conference and practically bludgeon them into a settlement. The reason for this was that the divorce rate had grown much faster than the capacity of the courts, and there was no way the judges had time to try more than one or two percent of the cases.
So by the time I started practicing, divorce looked like this: the attorneys made believe they were preparing for trial when in reality he or she knew that, in the end, the case would be settled. Settlement was the overwhelming norm, but the way you got ready to settle was by preparing for trial. It was great for the lawyers who could charge by the hour, but terrible for the clients who wasted years in limbo and often emerged from the process emotionally and financially drained.
Those old enough to remember may recall that the seventies were also the era in which psychotherapy became a mainstream service. You did not have to be crazy to see a psychologist or a counselor; you could go because you were unhappy. Psychotherapy for the “worried well” became part of the middle class rite of passage. The reason this was important was the psychological profession began to bear witness to the emotional carnage being committed in the divorce industry, and began to ask whether it really had to be so destructive. From about 1977 to 1979, a coalition of family therapists and other psychotherapists as well as a few reform-minded lawyers began to explore what was then a radical alternative: why not bypass all the legal procedures and offer couples a direct route to an amicable settlement of their divorce? A single, impartial mediator could help a couple by initiating discussions and negotiations they could not have on their own, and could provide the leadership and setting that facilitated the couple in working out a settlement. The agreement would be run past lawyers in the end, the couple was free to consult with lawyers when they wanted advice, and this mediation process required very little lawyer time compared to conventional divorce. Couples could now resolve their divorces in a few months rather than years, and at a small fraction of the cost of a conventional divorce. Additionally, because the parties did not savage each other in court, and because the parties did most of the talking, mediation had the added advantage of helping divorcing couples learn a new way of communicating so that they could cooperate around issues regarding children. It quickly became apparent that couples who succeeded at mediation had more successful divorces with less post divorce conflict, and a much lower level of general trauma.
Divorce mediation was good for divorcing couples, but not so good for the lawyers who were threatened with the potential loss of billions in revenue. Bar associations declared war on mediators and tried to argue that mediation was unethical. I was the first divorce mediator in New Jersey and the bar association unsuccessfully tried to have me disbarred. This warfare went on throughout the country for a good ten years until the bar and judiciary grudgingly accepted defeat. So in the past thirty years divorce mediation has grown to the point where there are thousands of practitioners, and every year more people divorce using mediators.
In mediation, the mediator works directly with the couple to help them define their issues and negotiate solutions to their problems. In this mediation lawyers are kept in the background and consulted only when the client feels the need. The result is that the clients do the talking and take responsibility for the result. By comparison, in the lawyer-centric divorce, the lawyers do the talking, reducing the clients to the passive position of children rather than responsible adults. It is the focus on direct communication that is the psychological heart of mediation and which is completely lacking when lawyers take over. This may be why half of all lawyer-negotiated settlements end up back in court within two years, with parties fighting over kids and money. Clients in conventional divorce have a low level of commitment to the terms of their settlements because they often feel the terms of the settlement were imposed on them. By contrast, clients in mediation feel that they have authored their settlements and have a much higher commitment to honoring the terms. It is estimated that less than five percent of couples who successfully mediate go back to court.
Divorce mediation has been a success and is slowly changing the landscape of divorce. But the legal profession has now fought back. Why not create another version of mediation, but one that will not dislodge the lawyers from the center of the process. This not only preserves legal fees, but creates a new billing event for lawyers while allowing them to pose as progressive.
So the North Carolina Court, along with the North Carolina Bar Association, created a court-attached mediation program. After the divorce attorneys have developed a case, and after the parties are thoroughly polarized, the court orders mediation. This means that another lawyer meets with the two lawyers and their clients for a day to try to negotiate a settlement. The “mediators” are litigators who have attended a five day seminar and then observed two mediations. Then having not performed a single mediation, they are “certified” by the Supreme Court as “certified mediators”, who can be appointed by the court to mediate between the lawyers. This essentially replaces what used to be called a four-way conference at which most divorces were settled, and also largely replaces the judge run settlement conference.
This “mediation” bears no resemblance to real divorce mediation and offers none of the advantages. It is very expensive. Each client pays their lawyer to spend hours preparing and then spending a day in the mediation conference. They also have to pay the third lawyer serving as the mediator. Consequently, it is not unusual for such mediation to cost the couple upwards of $10,000. These conferences usually result in a settled case. But there is a serious question whether they add any value. This is because the case would have settled anyhow even if the lawyers met without the mediator. Remember that about 99% of cases settled before the state adopted this version of mediation and 99% settle with the mediation. So there is essentially no difference except higher fees to the clients.
Don’t be misled by your attorney. Court-mandated mediation does not lower your costs, speed up your divorce, or teach you new ways of communicating. It is not much more than another opportunity for the divorce bar to separate clients from a little more of their money.
Not all mediation is the same. Call me anytime with your questions about your case.