Let’s start with this: It is a bedrock principle of mediation that mediators are neutral facilitators and that mediation participants are free agents, if you will, to decide their own outcome. Mediators are supposed to facilitate an outcome which derives from and works for both parties.
As a personal injury attorney for over 20 years, I sat through hundreds of mediations representing individuals physically hurt by someone else’s negligence. The mediators always had the same pitch: you are taking a risk going to trial, there are going to be additional costs, you do not know what a judge is going to do, and “in my experience, on a good day, a jury will come back with a verdict of $X”.
I have also been practicing divorce law for many, many years. I saw too many times how the dominant party would control the litigation, and even the occasional mediation. I saw, particularly, women settle cases without regard to their long-term interests just to be done with the marriage, often selling out for dimes on the dollar.
When I started to mediate, I resolved that there must be a better way. While my One Day Divorce approach is innovative, I believe that my approach to the mediation itself is equally innovative. I particularly wanted to level the playing field so that both parties would have access to the same information so that they would both be equally well prepared for the mediation.
My first observation is that mediation is not for everyone. If you cannot trust your spouse to disclose all of the income and assets of a marriage, then you should not be in mediation. If you cannot trust your spouse, then you should hire a lawyer and go through the courts.
My first step then is to ensure that there is sufficient trust and good-will between the parties to mediate. Assuming there is, I have developed very comprehensive online questionnaires to gather information necessary to a divorce. My questionnaires gather background information, identify the issues to be raised during the mediation and create an inventory of the income, assets and debts of the marriage.
This information is then shared with both parties so that we can identify where there is differences between the two. For example, if husband thinks there is $10,000 in a bank account, but wife thinks there is $40,000, one of them will need to bring in documentation to establish the actual value.
Both parties see the other’s responses to the questionnaires. We do this specifically because the mediation session itself should not be about fact finding. We should not be sitting in the mediation wondering about the value of retirement accounts or the equity in the home. We work out these issues prior to the mediation.
At our Pre-Mediation Conference, usually held two weeks before the mediation, I explain the law to the parties. I explain how the courts would resolve issues like the amount and duration of spousal support, or how the cohabitation period before marriage impacts the distribution of assets. This information provides guide rails so that people understand which positions are reasonable.
My approach then is to ensure that the parties have both sufficient facts and sufficient understanding of the law to come to an agreement which is within the bounds of Oregon law. I describe this approach to mediation as Muscular Mediation. People are free to come to their own workable solutions, but it is tethered to the law so that the final result is reasonably fair, as if they had gone to court.
This approach, establishing the facts and explaining the law, is I think the best formula for helping couples achieve a satisfactory conclusion to their divorce. The decision making power remains within their hands, and they have the knowledge that the final result was made consistent with Oregon law.
My other innovation is creating a hybrid mediation and binding arbitration session. While this is not unique in the practice of law, it is unique as a tool to get a resolution of a divorce in a set period of time. Using this approach, people know that the divorce will be finished by a specific day. And, sense I explained the law prior to the mediation session, the parties have a pretty good idea how an issue will resolve if they cannot decide and I am forced to make the decision for them.
I will continue writing about my unique approach to mediation. The point is that after practicing law for some many years, I saw how badly divorce practiced evolved, and was determined to find a better way. It does not need to be as cumbersome or as expensive as it is.