FAMILY LAW MEDIATION: PURE FORM IS THE PORTEND FOR THE FUTURE

COPYRIGHT 1996, 1997

This presentation was originally made by Kenneth G. Raggio to the University of Houston Seminar on Divorce. 

INTRODUCTION. Family law mediation is currently held in great favor by many family law practitioners and judges in Texas as an effective way of disposing a significant number of family law matters with less use of judicial resources than a traditional adversary proceeding. However, the currently preferred model of mediation used in Texas, "caucus" or "court annexed" mediation will in the future be greatly displaced by "pure form" mediation due to competitive factors and client demand. While few lawyers will desire or possess the volume to have a full time mediation practice, most family law lawyers who refuse to become experienced as mediators will most likely see a significant and growing portion of their practice evaporate. The article does not purport to teach one to be a mediator; it references the latest concepts and sources of information about Mediation.

BACKGROUND. In the past several years many lawyers have become mediators in family law. Several courts, including those in the metropolitan areas, have list of "approved mediators" to which the courts assign cases for mediation. As more family law attorneys discovered mediation, the topic began to get regular attention at family law seminars. The Legislature mandated the ADR statement for post September, 1995 filings. Many family law practitioners have found their skill set was easily expanded to add mediation as another tool to help effectively help their clients resolve their problem. In Texas, the common mediation model is Caucus Mediation; nationally, the more common model is Pure Form. Both have their user advantages and disadvantages.

CAUCUS MODEL MEDIATION SUMMARIZED. Typically a family law action is filed by a party represented by an attorney, the other side files a response represented by an attorney, discovery and perhaps hearings ensue, and just short of trial, a mediation is scheduled. At the mediation session, the mediator generally gives an opening introduction of the mediator's expertise, how the process works, what the mediator understands about the issues in dispute and asks for the commitment of both parties that they are at the mediation in good faith to try to resolve the issues in the case, and asks each side generally for a non-confrontational opening statement. The mediator generally separates the parties into "two caucuses" and practices "shuttle diplomacy" between the parties to help them narrow their issues and come to an agreement. The agreement that is made is reduced to writing and signed by the parties.

Advantages of Caucus Model.

It allows each party to tell (vent?) their story in an atmosphere that is productive. The mediator can be sympathetic and be a good listener, but can also reinforce to each party the realities of the situation in helping lead both parties to resolution.

Discovery is generally at least somewhat complete so that the parties are operating at close to a parity of understanding of the issues.

Caucus mediation has shown a very good success rate.

Caucus mediation allows progress and sometimes settlement in situations where the extreme conflict between the parties is exacerbated by the parties being together.

Disadvantages of Caucus Mediation.

It is rooted in the adversarial system.

It is often under a "settle or else" mind set that leads to second guessing of decisions made in the mediation shortly thereafter. Case law and statutes that now recognize the problem of "buyers remorse" and have made signed agreements enforceable. See In Re Ames, 860 S.W.2d 590 and Texas Remedies Code §154.071(a).

Expense. Having each side with an attorney there during the entire process, as well as paying the mediator, can be an expensive proposition. Most caucus meditations are usually done in one, marathon session until complete and the session can run (in several reported cases) until the wee hours.

Downtime. While the mediator is with the other party caucus, one side is left for extended periods of time with little to do, but must be standing at "the ready" in case the mediator comes back to caucus with them. The "meter" is running the entire time.

Michigan's Formalized Caucus Mediation--Court Annexed Mediation. The State of Michigan has formalized caucus mediation into what is called court annexed mediation and it has become a standard procedure in virtually all family law cases in Michigan, and is quite successful.

"PURE FORM" MEDIATION.

Defined. Pure form mediation, which is the mediation model predominantly in use around the United States, is the model where the mediator meets directly with the two family law parties and helps them to resolve their problem. The mediator generally meets with the parties in appropriate number of short sessions with goals "or homework" to be done between sessions. The mediator, when an agreement is reached, often prepares a complete agreement and many times, takes the parties to court for their pro forma prove-up of the agreement.

Literature Concerning Pure Mediation.

1. The Master of pure form mediation is Leonard Marlow who has published several books on the subject. He has been a full time divorce mediator for many years, and has done thousands of meditations in the pure form. One of his books is:

Marlow & Seibert, The Handbook of Divorce Mediation, Plenum Press, New York 1990
Lenard Marlow has just published his latest book Divorce Mediation: A Practice in Search of a Theory, Harlan Press, Garden City, NY, 1997.

2. The American Academy Matrimonial Lawyers Divorce Mediation Training Manual (Chicago Training, 1995, and Dallas Training 1996) available from the American Academy of Matrimonial Lawyers, (Chicago, Illinois). These manuals, used for the Academy's training leading to certification as a Mediator For Family Law Problems, explore all forms of mediation as well as giving practical materials and forms. It is the best single source of materials on pure form mediation.

3. The definite book in Divorce & Family Law Mediation was published by the ABA Family Law Section in July, 1996. It is:

Mosten, A Lawyer's Guide to Mediation: Increasing Skills and Profitability in a Family Law Practice. See it described at the Family Law Section's Home page at www.abanet.org/family/

4. A very recent book by Paula James, and Austi.n family lawyer who does a bunch of mediations, is The Divorce Mediation Handbook: Everything You Need to Know. Published in 1997 by Jossey-Bass. It is a self help book.

Advantages of Pure Form Mediation.

The parties, not surrogates (attorneys?), are involved to present their position and to respond to the other spouse's concerns. The mediator is truly in the middle as a professional neutral helping the parties to solve their problem.

Generally less expense. Instead of three lawyers being present at mediation, only one is present.

An evolving solution. Since pure form mediation is generally held, say, hourly sessions every other week for a period of time, the concepts of solution proposed for the parties' problem has a chance to "stand the test of time" before the parties sign on the dotted line.

Consulting Attorneys.

In most cases, genuine issues arise that the parties feel a need for verification or further inquiry. As a mediator is a facilitator of agreement, and a purveyor of legal information only (and not legal advice), the parties usually always have a consulting attorney with which to work with. This by necessity will cause the unbundling of legal services, discussed infra.

By way of example, a mediator may ask the parties to submit values that the parties agree to use for settlement purposes. A party may have a retirement benefit statement that only shows future benefit value of the retirement is the duty of the party, generally through a consulting attorney, to establish that this value is not an "apples to apples" value to be used in the case and to secure a true to current value (as defined by Berry v. Berry) and have this used in the mediation.

Consulting attorneys can explain to their clients the range of possibilities in the legal system to help the client decide on their position in the mediation.

Disadvantages of Pure Form Mediation.

Potential for agreement based on insufficient disclosure, or unequal bargaining power even though the first tenant of pure form mediation is the full disclosure of all relevant facts.

Ethical concerns for lawyers.

Since it occurs over a period of time, priorities, agreements and temperaments can shift, sometimes making definable progress difficult.

Consulting attorney. In most cases, it is imperative for both sides to have their own consulting attorney. What if a party refuses to have a consulting attorney? Or what if the consulting attorney says black while the parties in mediation and the mediator or saying white?

Typically, a pure form mediator is also a consulting attorney to parties who are participating in pure form mediation with other mediators, as they understand and are familiar with the process. This is clearly unbundled services which perhaps should be best covered by a written consultation agreement limiting services. See discussion of unbundled legal services infra.

Unequal bargaining position/overpowering dominion and influence/defect in capacity. The pure form mediator will be faced with a situation where one party clearly is at a perceivable, definable disadvantage. An example of this would be the "wife" who is in the guilt stage of the dissolution of the marriage and the "husband" who has been overbearing and domineering throughout the relationship says "trust me" about the values or the vague promises he is making. Typically this would mandate an immediate referral to the wife's consulting attorney for reality check. What if the "wife" won't go? Or refuses to even have a consulting attorney? This might be the situation where the mediator should terminate the mediation.

NEW TOOLS AND NEW CONCEPTS FOR PURE MEDIATION

Demand from consumers/clients for a more dignified/less expensive way to resolve their family law matter. Sophisticated parties will trend to want their family matter kept as discrete as possible.

Unbundled legal services.

Typically the family law attorney has a written contract of employment with the client for "full service" representation. In fact, the client can reasonably expect that the attorney is undertaking to represent the client on all matters, including by way of example domestic torts, or fraud claims that a client may have against the spouse unless there is a specific disclosed exclusion.

The unbundling concept, by the written agreement with the client clearly limits the scope of what the attorney is being hired to do and limits the attorney's responsibility. There may need to be a number of serial limited-engagement-contracts. The final consultation for the consulting attorney may be to "just look over" the final agreement that has been prepared in mediation and/or to take the client to court for the prove-up.

Consulting attorneys. See discussion infra.

MODERN FAMILY LAW MEDIATION: USING TECHNOLOGY TO GET TO YES

Concept.

The pure form mediator will, by necessity, get into the area of disseminating "legal information" to the parties, while avoid giving legal advice. The trained family law lawyer mediator is in the best position to be an effective mediator to effectively help the parties resolve their family law problems, especially in property and financial issues and second to none in custody and support issues. In a sense, pure form mediation can be done by virtually anyone, and family law attorneys must demonstrate their "value added" to the process and uniqueness of their services to be provided. One way of demonstrating uniqueness is the mediator's quick referral of the parties to objective, third party legal information that answers their inquiry in a particular area.

In pure form mediation, after the initial session (set up by the a letter to both parties, enclosing the questions to be resolved in mediation) and the mediation agreement is signed, there typically will be more work to be done. The parties will have questions, and how is the mediator to answer them without rendering legal advice? The well equipped mediator can use published materials to show the parties what others have said about the subjects questions.

Published Materials, State Bar of Texas.

The client manual disseminated at the 1994 Advanced Family Law Course is an excellent starting point used to educate clients or mediating parties about family law matters and falls into the legal information category.

All three major SBT courses (Marriage Dissolution Course in May, Advanced Family Law in August, and Family Law Drafting in December) have course books.

Checklists.

The American Bar Family Law Section has published a checklist issue of the Family Advocate, which is available on disk. It gives a good source of legal information about a broad variety of family law questions. abanet.org/family/advocate

The General Practice Section of the ABA has published a more wide ranging set of checklists that cover many areas of law, including family law but not in the detail of the Family Law Section's specialty checklists.

In office databases.

Many lawyers keep in office databases of articles, cases, etc. Many times accessing this data gives the pointer to the relevant information.

Treatises on CD-ROM's. The wide availability of Matthew-Bender and other family law treatises on CD-ROM, with good search engines, makes it quite easy to retrieve context, correct portions of the treaties.

On line access.

Pulling Dun and Bradstreet information, credit histories and other information such as state or county filings is now readily available through a number of services varying from the free-for-all Internet access through web browsers to specific for fee report generation through gateway such as CompuServe.

Do the parties really want to know?

Some parties will want to know and absorb everything about their case and reach all available publications. Some will want to have only a global overview and delegate. The right mix of information for a particular party depends on the party, the nature of the problem to be solved, and the availability of consulting lawyers, parties, and other factors.

THE WELL EQUIPPED PURE FORM FAMILY LAW MEDIATOR.

Technology can assist the lawyer and mediator in assisting the parties. The previous section discussed materials that are generally available to the lawyer in an office context. It may be that the mediation will not be held in a lawyer's office, or in a place where there is not ready access to the lawyer's data base of information. The following is a check list of the equipment that the "Mediator on the Go" can have to be a "full service" mediator with access to vast legal information:

1) a notebook computer with a hard drive large enough to hold a significant number of articles (if the retrieval program used has an automatic compression facility, clearly the space needed is less than having the data in uncompressed form.

2) internal CD-ROM, or external ROM drive.

3) small, portable printer such as the Canon BJE70.

4) big screen projection capabilities.

5) LCD plate or NTSC converter (converts computer video output to power any TV).

Most attorneys do not carry a 19" monitor around in their hip pocket but to display issues, or display possible solutions in alternatives thereto to the parties simultaneously the well equipped mediator should either have excess to some type of external display device,

PRE-CONCLUSION. Many of tools described herein are applicable to other forms of dispute resolution, including traditional settlement conferences, caucus mediation, and even presentation of one's case in an adversary proceeding. But the use of technology becomes even more important in the pure form mediation where the lawyer has a greater role in providing legal information than in traditional two party adversary representation.

CONCLUSION. Anybody can represent themselves in a divorce. There are those who wish to have somewhat more than "TV Times" type of legal services, but less than boutique-specialty-firm Veblenesque-type services. The fact is that the demand for mediation will be increased both by those whose primary concern is saving on expenses as well are the emerging group will want and appreciate the dignity and privacy that pure form mediation allows in resolving a family law dispute. Not only will demand for such services increase, but so will the supply of so-called pure form mediators, especially from the non-lawyer ranks. Family law lawyers are especially qualified to best serve the parties in pure form mediation, but the family lawyers must get into the process while there is need and demand.

This article is to give general information as a public and contains only the opinion of the author, and is not intended as legal advice.