by Alison Silber, Esq.
Family law practitioners and litigants alike frequently criticize the court system for its capacity to foment and protract conflict, reinforce the oppositional relationship between parties, and necessitate cumbersome and expensive discovery. Mediation is often praised as the reasonable, intelligent alternative to family law litigation, and my own practice bears this out. However, family law mediations with pro se parties have their own risks and the thoughtful and ethical mediator needs techniques to mitigate these risks.
The Lack of An External Timeline
Andrea and Samuel1, a married couple with no children, visited my office seeking a divorce. The parties were enthusiastic about and committed to the mediation process and were able to communicate respectfully, which made our session very productive. Within three hours, the parties had agreed to a division of property, which included their apartment, time-shares, retirement, bank accounts, and personal property like their extensive Lego collection,2 as well as other issues like alimony and health insurance. The only remaining piece to negotiate was division of their dogs, so we scheduled a second session for the following week.
As the parties were walking out the door, I realized I had forgotten to ask for the date of separation, a preliminary question I normally ask before the parties schedule their first mediation. Their answer stunned me: they had been separated eight days! They had called me the day of their separation, without stating that to me, and had the luck of getting squeezed into my calendar quickly. If we resolved the question of the pets at the following session the next week, they would have gone from separation to full agreement within fifteen days.
Is a hyper-efficient mediation timeline okay? One could assert that the Commonwealth of Massachusetts provides its own delays, since an uncontested divorce (1A) does not finalize until the 120 day waiting period ends. Nonetheless, do we as mediators have a duty to make sure an agreement is not reached too quickly after separation when emotions may still be raw and fogging long-term thinking? My suggestion to other mediators, and to my own office, is to schedule the first mediation no earlier than one month after separation, to schedule the second session no earlier than two months after separation, and to schedule the third session no earlier than three months after separation. If the parties agree to an earlier session then that may be a self-determination they make, but the burden is on them to agree to an earlier session and overcome scheduling protocols that protect against an emotional override of their logical thinking.
Potential for Failure to Self-Advocate
In another mediation, Miguel and Dana, two never-married parents, presented with more tenderness and good will toward each other than we normally see in family disputes. Despite some great obstacles, like a large physical distance between the parties, both were enthusiastic about mediating unresolved elements of their parenting arrangement, such as child support. Neither party had counsel and neither party had even opted to meet with an attorney for an initial consult.
In our discussion of child support, the parties asked to first run the Massachusetts Child Support Guidelines, which suggested that Dana (the non-custodial parent) pay a certain amount per week in child support. The parties then brainstormed and discussed other options, such as calculating child support based on specific expenses, agreeing to a figure above the guidelines, and agreeing to a figure below the guidelines. Ultimately, after consideration of both of their financial needs and circumstances, the parties agreed to a figure 40% below the Guidelines’ suggested amount.
In this instance, I reminded the parties that the Commonwealth of Massachusetts has Child Support Guidelines for a reason, and has determined that the Guidelines are in the best interest of the children. I then advised them that they would need their own attorneys to draft this Agreement which provided them one more opportunity to ponder, this time with the assistance of counsel, whether their Agreement was indeed in their best interests and in the best interest of their child.
This scenario presents the question: where the mediator is committed to neutrality, to what degree, if any, is it appropriate for the mediator to take steps to ensure a fair and reasonable agreement that the court would be willing to accept? If the mediator senses that an agreement might not stand in court, such as a child support order 40% below the Guidelines, should the mediator share that instinct? There is no perfect answer, and each mediator must make a thoughtful determination each time the question arises.
Potential to Commit to Unrealistic Obligations
Similarly, just as unrepresented parties have the potential to agree to terms not in their best interest, they also have the potential to agree to terms that aren’t actually realistic. Take, for example, Joe and Leslie, who were ending their 25 year marriage with three nearly-adult children, considerable debt, a declining family business, and a beautiful marital home. Both parties agreed that Joe would keep the marital home and buy out Leslie’s interest with a lump sum property settlement of several hundred thousand dollars.
However, Joe did not have anything close to the lump sum figure in liquid assets or even in retirement assets. Joe, who had both personal debt and debt attached to the small business he owned, was unlikely to secure refinancing that would give him access to several hundred thousand dollars.
In this situation, I sent the parties home with homework. Joe agreed to meet with several lenders to determine what refinancing options existed for him and to return to our next session with documentation of the same. Leslie’s homework was to find an attorney and discuss whether this arrangement posed any exposure for her. What would the attorney suggest she do in the event Joe could not obtain the lump sum amount by a certain date?
If self-determination is a key aspect of mediation, to what degree should a mediator interfere by nixing an unrealistic agreement that both parties have enthusiastically reached?
Divorce mediation is touted as an inexpensive, efficient option for parties who do not want to retain counsel, but in many instances consulting an attorney is a necessary step in order for parties to reach an equitable agreement. Mediators need to be mindful and protective of their neutral role while balancing ethical concerns.