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Nathaniel Wallwork

Professor Michael Vitlip

PHIL-475-001

19 March 2014

Determining the Value of Divorce Mediation

Introduction

In 1993 the New York Times published an article titled “Are Divorce Lawyers Really the

Sleaziest?” The article follows the establishment of new rules in New York State exclusive to

divorce lawyers that

Require divorce lawyers to provide reliable estimates, itemize their bills, and hand all clients copies of a consumers' bill of rights. They prohibit lawyers from demanding non-refundable retainers or from making clients sign over their mortgages to guarantee that they'll pay their legal fees. They also prohibit sex with clients.1

These strict rules truly exhibit an attitude towards divorce attorneys that is unprecedented in

other fields of law. Perhaps this is because, according to the National Discipline Databank of the

American Bar Association, divorce attorneys lead the pack in both ethical complaints and

instances of ethical discipline. However, it also exhibits some of the many dilemmas that divorce

attorneys face in a field of law with such adversarial implications. Zealous representation is

absolutely necessitated in domestic relations cases, where cases are rarely a simple matter of

right and wrong, legal or illegal. This zealous representation is so interpersonal that often

lawyers act as therapeutic consultants for their clients, opening up a range of ethical issues that

are rarely addressed in traditional adversarial ethics.

The goals of a divorce attorney are complex. As Steven Hobbs points out, “a tension

exists between the state’s primary goal of ordering family relationships and the state’s 1 Labaton, Stephen. "THE NATION; Are Divorce Lawyers Really the Sleaziest?" The New York Times 5 Sept. 1993. Web. 1 Feb. 2015. <http://www.nytimes.com/1993/09/05/weekinreview/the-nation-are-divorce-lawyers-really-the-sleaziest.html>.

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adversarial divorce process that dissolves those relationships.”2 On the most basic level, the goal

of a divorce attorney is to legally dissolve a marriage according to the policies set forth by the

state, so that the clients may pursue the lives that they desire. However, this is arguably the

easiest part of divorcing a couple. The divorce attorney must also consider the financial interests

of his client, having been involved in a dualistic financial relationship for however amount of

time. The attorney must pursue shared property, bank accounts, and other assets while keeping in

mind the price of their services as these negotiations extend themselves, as well as the emotional

well-being of their client. Furthermore, if children are involved, the attorney must prioritize the

child’s individual needs over their own client’s, a notion that is unheard of in traditional

adversarial process.

The complexity of these goals complicates a traditional adversarial approach to divorce.

As a result, many believe that a different approach is necessary to successfully achieve most or

all of these goals: mediation. Hobbs says, “The mediated divorce has evolved as an alternative

mechanism that promises to be more consistent with the state’s primary goals for the family.2”

This paper will explore how mediation is a better alternative to the traditional adversarial

approach in divorce law. It will also explore the necessary ethical framework for attorneys

pursuing mediation. Finally, it will address ethical issues that have arisen as a result of

mediation’s growing popularity and will theorize on how to solve such issues.

The Necessity for Mediation in Divorce

Traditional adversarial law presents couples with a very limited approach to handling

their divorce. Nancy Simmons points out that in the past “attorneys, acting as surrogates, fought

it out, hurling accusations, throwing up defenses, and not infrequently, using children as items of

2 Hobbs, Steven. "Facilitative Ethics in Divorce Mediation: A Law and Process Approach."University of Richmond Law Review 22 (1988): 326-75. HeinOnline. Web. 16 Feb. 2015.

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barter or, worse, as weapons.”3 The idea of attorney surrogacy is one found in all fields of law, in

fact, it is expected. The principle of zealous advocacy calls for such representation; attorneys

must use the law as an instrument to further their case by practically any means necessary.4

However, in divorce law the instruments at the attorney’s disposal can permanently harm the

family’s well being, and will often lead to a process of settlement that ends up being emotionally

cruel to all parties involved. Such instrumentalism is harmful to many of the divorce attorney’s

goals regarding the family. As Hobbs points out, “Divorce wreaks havoc in the lives of the

individuals involved, and the adversarial divorce process intensifies this turmoil.” This is just a

result of the nature of a divorce; for instance in the case of custody “the couple whose united

love resulted in the birth of children now fight with dogged determination to obtain ‘possession’

of their offspring.” Furthermore, Simmons points out that “divorce cases comprise up to one-half

of all civil litigation pending in this country, and the adjudication of divorce may take years.”

Mediation is a response to the problems found in traditional adversarial law. Specifically,

mediation is the appointment of a neutral third party attorney that oversees negotiations

pertaining to the logistics of a divorce. Richard Crouch details the benefits of mediation as

follows:

1. Avoidance of unnecessary hostility and artificial antagonism that can destroy all chances of cooperation in constructing a settlement.

2. A measure of client autonomy in constructing the solution-which is generally agreed to increase the chances of voluntary adherence to the agreement in future years.

3. Avoiding the traditional two-attorney fight in the settlement process (to say nothing of litigation)-which holds out more promise of reducing costs.5

3 Simmons, Nancy. "Ethical Considerations of Divorce Mediation: Formal Ethics Opinion No. 488." Willamette Law Review 21 (1985): 645-62. HeinOnline. Web. 17 Feb. 2015.4 Luban, David. Lawyers and Justice: An Ethical Study. Princeton: Princeton University Press, 1988. Print.

5 Crouch, Richard. "Divorce Mediation and Legal Ethics." Family Law Quarterly. Vol. 16.3 (1982): 219-50. HeinOnline. Web. 17 Feb. 2015.

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Crouch also believes that mediation allows “the advantage that usually results when one has to

state demands and their rationalizations in the actual presence of the other party and that of a

presumptively neutral and reasonable third person.5” Mediation allows for a level of self-

advocacy that cannot be replicated in the adversarial process, which is especially important when

negotiating a settlement that is beneficial to both parties. The mediation process allows the

parties to draw and improve upon their ability to communicate and work together, as it isolates

issues and strives to find rational solutions on a case-by-case basis. I believe that mediation is the

most effective and ethically sound process for divorce, because of its ability to (1) foster positive

cooperation between opposing parties, (2) ensure that the needs of all parties, including children,

are met zealously and fairly, (3) minimize emotional trauma as a result of court proceedings,

especially for children and (4) eliminate the needless “clogging of court dockets,3” as Simmons

puts it.

Recognizing the Dominant Approaches to Mediation

Despite the advantages of mediation, the need for an established ethical framework for

the mediating party is absolutely necessary. As Hobbs points out, “In mediation, the attorney

generally assumes the role of counselor. She is an instrument of peace trained to avoid

litigation.” The attorney is a facilitator, influencing decisions for both parties based on the ethical

implications of said actions. Furthermore, the attorney must be willing to defer to outside

professional input regarding emotional problems. This could be a willingness to discuss solutions

with “counselors, social workers, psychologists, and clergy.2” However, the law does not always

allow the use of these third-party professionals, another important nuance that the attorney must

address in a way that is consistent with the law. In order to further explore the role of the

mediating attorney, it is important to distinguish the two primary approaches to mediation: the

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“regulatory” approach and the “voluntary participation” approach. It is worth noting that these

approaches have risen out of mediation practice as opposed to policy. The regulatory approach,

as given by McEwen, is as follows:

This "regulatory" approach to mandated mediation often includes mediator duties to assure fairness (such as a duty to assure a balanced dialogue); exemption of some cases from compulsory mediation; limitation of the scope of discussion during sessions to custody and visitation issues; requirement of advanced degrees and mediation training for mediators; requirement that the parties' lawyers and the court review mediated agreements; and prohibitions against the mediator making recommendations to the court.6

In the regulatory approach, opposing parties are required to attend sessions as deemed necessary

by the mediating attorney; absence from these sessions may force the attorney to enforce

consequences, or may affect the attorney’s disposition regarding the absent party. The regulatory

mediator is expected to dutifully enforce fairness between the parties, such as “balanced

dialogue,” and to control which issues are discussed during mediation sessions; custody

negotiations should not give way to property ownership but should focus solely on custody. 6

The regulatory approach often limits the power of each party’s attorney during sessions

of mediation. Often, the attorney will not be expected or even permitted to attend, depending on

state law: California, Wisconsin, and Kansas permit exclusion of attorneys by the mediator.

McEwen observes that nationwide “lawyer-participation is the exception.” If the attorney is

present, he or she will be expected to silently observe negotiations and use that information to

support their client in further negotiations. The attorney will not be permitted to address his or

her client or the mediator (although in Florida counsel is allowed to address the mediator at the

beginning of the session.) The regulatory approach calls for the general non-involvement of the

6 McEwen, Craig, Nancy Rogers, and Richard Maiman. "Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation." Minnesota Law Review79 (1995): 1317-407. HeinOnline. Web. 17 Feb. 2015.

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parties’ attorneys, as their involvement may harm the cooperative nature of mediation by

promoting an adversarial tone.6

Mediation proponents, because of its duty to fairness, often support a more regulatory

approach. As this paper will later detail, one of the main criticisms of mediation is the possibility

of a disproportionate bargaining structure based on many aspects such as financial superiority,

power within the community, and gender. Those who support mediation believe that a regulatory

approach is a sufficient response to these concerns: “Regulation is seen as the ‘fail-safe’

mechanism of mandatory mediation, the safety net that provides the final protection against

unfairness.6”

However, many believe that such regulation is unnecessary; opponents of mediation

especially believe that such regulation will not successfully produce the fair results that

mediation necessitates. Instead, they support a voluntary participation approach to mediation,

one in which there is little to no regulation over attendance of introductory or mediation sessions,

or over the nature of negotiation in general. Proponents of voluntary participation believe that “if

parties choose to use mediation, those who do will be informed, and their rights will not be

jeopardized, even though lawyers generally will not attend the meditation sessions.” Because of

a lack of regulation, parties are expected to understand the consequences of mediation before

they begin negotiations, to do so otherwise would hinder a client’s ability to create solutions

beneficial to their own purpose. Often in the voluntary approach, parties will be encouraged to

negotiate matters that do not require legal expertise without the mediating attorney; many believe

that this form of casual, non-litigated cooperation effectively isolates the issues that generally

make divorce litigation ethically flawed, and allows more domestic issues such as child last

name assignment and joint-custody scheduling to be settled in an evenly weighted discussion

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between the parents, as opposed to expecting the court to determine “who is right.” In the event

that such negotiations fail, the parties can then turn to the mediator, who will influence discourse

in hope that a fair solution can be found. Such a method can, in theory, significantly reduce the

cost of legal assistance in divorce; the mediator is only called upon to help solve issues that

require legal expertise, and often, outside counsel isn’t necessary.6

While attorneys pursuing mediation may prefer this more relaxed approach, there are

clear dilemmas in allowing attorneys to choose this approach. For one, the attorney has the

power to determine which issues he or she will help the clients mediate. If an attorney wants to

avoid a particularly meticulous or aggravating issue, they have the option to influence the parties

to negotiate themselves, offering little help on an issue that may need legal influence to be solved

because of a personal reluctance to assist. Furthermore, individual parties have the power to

refuse attendance to a mediation session for an issue they may choose to “hold-out” on, forcing

the opposing party to either give up, which will rarely happen, or to bring the issue to trial.

Of these two dominant approaches, I believe that a regulatory approach is more effective

in pursuing a divorce mediation that is both fair and ethically responsible. While many of the

issues that divorce must settle are not legal in nature, it does not mean that such issues are void

of a need for legal expertise. I believe that mediation has an advantage over adversarial

proceedings because of the power a mediator has to positively influence cooperative negotiation;

it places an emphasis on the counseling aspect of divorce law and shifts traditionally adversarial

role morality from zealous representation of an individual client to zealous representation of the

family unit as a whole. However, without legal regulation or supervision the divorce has a

significant danger of becoming even more adversarial, further straining negotiations between the

parties and forcing them to litigate, leading to a mediation that has completely failed. This hardly

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means that a completely regulatory approach is the best way to execute mediation; later in the

paper I will explore a third approach proposed by McEwen that will attempt to directly address

certain instances of unfairness within divorce mediation.

Exploring Instances of Unfairness in Divorce Mediation

As mediation gains popularity, many criticisms have arisen as a result of the ethical

failings displayed in some mediation. Penelope Bryan highlights a pattern in failed negotiations

in which a “high-risk” client is unfairly taken advantage of based on “vastly different negotiating

power.” Negotiating power is generally gained as a result of the “possession of tangible and

intangible resources,” but can also arise from emotional instability resulting from the divorce or

a troubled marriage.7

In many marriages, especially in those deemed “traditional,” the head of the household

will take primary control over finances, putting bank accounts and property in his or her name.

Thus, that party has the upper hand in negotiations; the opposing party must compel him to

divide ownership fairly if they wish to avoid litigation, which is hardly a straightforward task. A

spouse that makes more or all of the household’s income “sometimes can disadvantage the other

spouse by his or her efforts to gather and hide information, seek expert advice, and stall or

extend the mediation process.” Just because the goals of mediation are non-adversarial, this

hardly means that the parties involved will choose to act in a non-adversarial manner, especially

when they have such a clear advantage.7

Bryan points out that “intangible resources may be harder to evaluate. Intangible

resources relevant to negotiating power include personal characteristics, emotional states,

relationship patterns, and belief systems.” One such resource Bryan points out is that of

7 Bryan, Penelope. "Reclaiming Professionalism: The Lawyer's Role in Divorce Mediation."Family Law Quarterly 28.2 (1994): 177-222. HeinOnline. Web. 17 Feb. 2015.

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intelligence. The advantage of intelligence is one that is gladly given in traditional law; a client

or their attorney’s intelligence can undoubtedly act as a fair means to achieve an end. However,

mediation seeks to achieve a utilitarian result, one that benefits both parties in the most equal

way; an imbalance of intelligence will often favor the more intelligent party. Thus, a spouse who

has had significantly less education or experience with legal custom may be tricked into

accepting terms of a negotiation that do not necessarily facilitate the best possible results for his

or herself. Similar concerns can be raised when considering a client’s social status. Status can

give a spouse numerous advantages in mediation; “he or she can command deference from, and

can exert subtle control over, lower-status people.” Bryan observes that in cases where a clear

imbalance of status exists, the lower-status client, and even the mediator, will often defer to the

party that holds the authority associated with his or her status. This goes hand in hand with the

advantages that result from tangible resources and intelligence: “occupation, education, and

income, as well as maleness, correlate highly with status.” Bryan believes that the “high-risk”

mediation client will function with a clear lack of bargaining leverage as a result of the

imbalance of such resources.7

However, it is not just the ability to negotiate using resources that serves as her sole

criticism of mediation. The preservation of a client’s own psychological well being may heavily

influence how they choose to negotiate in the mediation. Bryan points out that “emotional states

that influence spouses’ negotiating power during mediation include an exaggerated need for

psychological closure, guilt, depression, low self-esteem, and low expectations.” Any process

that requires constant ambiguity regarding one’s present and future brings a desire for closure

that may transcend a client’s desire to successfully bargain in mediation. A high-risk client may

decide to sacrifice what he or she is owed in order to bring their family peace; this is dangerous

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as “an agreement reached under pressure may alleviate a client’s current psychological distress,

but neglect the client’s long-term interests.” The same attitude of reluctant settlement will arise

from a client that feels guilty, depressed, or has a sense of low-self esteem. The issue of

mediation during depression induced by the divorce is especially important in recognizing high-

risk clients:

Even when a depressed person recognizes her potential financial vulnerability at divorce, she may be unable psychologically to pursue a settlement that meets her needs. Similarly a father’s depression may inhibit his ability and willingness to hold firm during mediation for the visitation he deserves.1

Often a mediator will neglect to acknowledge that the emotional tolls of a divorce will

significantly impact the outcome of the settlement, as well as a client’s willingness to zealously

bargain for his or herself. Bryan also points out that negotiation is significantly affected by

esteem: those with low self-esteem achieve poorer results while “high-self esteem leaves one less

vulnerable to persuasion.” The potential consequences of these emotional responses to divorce

have often been neglected by mediators; this has led to an imbalance in mediation that fails to

achieve fairness in settlements. While a mediator may continue negotiations by allowing a client

to cede her position in a negotiation due to emotional stress, he or she should avoid doing so in

fairness to the implications of such stress.7

Many of these emotional vulnerabilities may arise from the divorce itself, but many

emotional attitudes that exist residually from the marriage can also negatively affect the

productiveness of mediation. One such attitude is that of dependency. As was previously

mentioned when exploring the consequences of tangible resource imbalance, “when a client has

depended upon her spouse for a significant period of time, she unconsciously or consciously may

fear alienating that spouse during mediation.” Bryan points out that such dependency can

potentially influence the misguided trust of a spouse regarding his or her “former benefactor.”

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However, dependency is hardly the most potentially hazardous attitude that arises from dissolved

marriages. Relationships that were predicated upon significant emotional or even physical abuse

have seen such abusive patterns persist into mediation. This can form a more aggressive form of

dependency, “in which an abusing spouse restricts his victim’s access to family and friends,

making her psychologically dependent upon him.” An abusive spouse often has control over

finances, and has previously controlled a combination of “his victim’s life, including her beliefs,

her values, and her body.” While laws have been passed to protect the bargaining rights of

victims of abuse, dependency can manifest itself in many ways, as can abuse. Mediators must be

prepared to recognize when a client’s dependency on their spouse is affecting the way the client

chooses to negotiate, or if fear of possible of violence or excessive outburst is influencing his or

her decision-making.1

It is worth mentioning that many of the issues raised by Bryan seem to specifically target

men as the antagonist of mediation unfairness. While she often makes an effort to achieve gender

duality by creating separate theoretical instances for men and women, it seems that many of the

issues she raises, especially those of control and abuse, are rooted in a fundamental siding with

woman in divorce mediation. Bryan’s highlighting of instances that specifically address woman

is both necessary and factually justified, but seems call for a switch in gender favoritism in

divorce mediation, instead of moving to eliminate gender favoritism in general. This issue is

more philosophically rooted in discussions of feminism and gender, but such distinctions in

advising the ethics of divorce mediators will prove problematic in the near future in which

gender roles are rapidly changing and same-sex marriage is slowly being accepted throughout

the entire country. That being said, Bryan raises very real and important issues that must be

addressed when addressing the ethics of divorce mediation.

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How Can High-Risk Clients Pursue Mediation?

Having detailed the ethical failings of mediation, the question persists as to whether or

not high-risk clients are able to pursue mediation. Bryan argues that attorneys should not opt to

mediate with such clients:

Once a lawyer determines that a client presents a high-risk profile, the lawyer generally should try to avoid mediation. Avoidance seems especially important when the client has experienced physical or emotional abuse in the marriage.7

Bryan doesn’t necessarily believe that high-risk clients are completely unable to pursue

mediation, but believes that the aforementioned instability of such clients requires time to

stabilize. However, Bryan points out “because mediation generally is recommended early in the

divorce process, most clients do not have sufficient time to mend.” Because the emotional scars

resulting from the divorce are fresh, the client needs time to recover before any sort of mediation

is pursued, otherwise they will be at a significant disadvantage. The mediator will be unable to

ensure a fair mediation with the presence of a high-risk client.7

However, McEwen presents a third approach to mediation, called the “lawyer-participant

approach.” The lawyer-participant approach calls for the individual appointment of attorneys that

work in junction with the mediating attorney. McEwen believes “this scheme achieves fairness

primarily by encouraging lawyers to attend and participate…this scheme includes only two other

key regulatory provisions-court review of mediated agreements and a prohibition against the

mediator’s recommendation to the court.” The lawyer-participant approach eliminates the

concerns of unfairness that arise when a mediator is solely responsible for maintaining a level

playing field. Instead, the client is able to trust their individually appointed attorney to constantly

ensure that they are being fairly represented. McEwen points out that “given the unpredictability

and changing situational character of these challenges to fairness, the presence of lawyers in the

process can assure necessary help in those unpredictable circumstances.” Instead of being forced

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to trust the mediator to be impartial, the client can rest easy knowing that such accountability is

being imposed by their attorney, whose goals are specific to the attorney despite their duty to the

family. The presence of an attorney also can “prevent or moderate the effects of a face to face

encounter with an abuser, thus diminishing the likelihood of unfairness in domestic violence

cases.” When the abuser has his or her own representation, the client and their attorney no longer

are forced to meet face to face with the abuser, because the abuser’s attorney can now negotiate

on his or her behalf. In fact, McEwen’s research in Maine shows that such lawyer-participation,

in fact, reduces abuse as a bargaining factor, especially when face-to-face contact is regulated.

Ultimately, the appointment of a lawyer-participant greatly solves many of the problems that

Bryan raises with unfairness in mediation.7 McEwen summarizes the lawyer-participant’s benefit

to the mediation process as follows:

Lawyer participation in the mediation sessions permits intervention on behalf of clients and buffers pressures to settle. Lawyers may also counsel clients to moderate extreme demands. In addition, once lawyers become accustomed to mediation, lawyer involvement in mandated mediation does not appear to prevent the meaningful participation of parties or inhibit emotional expression between spouses.6

Criticisms of the Lawyer-Participant

Despite the seemingly beneficial nature of the lawyer-participant’s presence,

criticisms undoubtedly exist of such an approach. In this section, I will address these

criticisms, and respond based on my defense of the lawyer-participant approach. One

important criticism is the lawyer-participant’s belief in a “better way.” Bryan points out

that often lawyer-participants, as a result of their experience and familiarity with the

system, impose their own belief of a successful settlement on their client. The lawyer-

participant’s “uncritical belief in mediation’s superiority encourages her to abandon her

professional role and to neglect her client’s interests.” In other words, the attorney will

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ignore the client’s wishes in order to pursue the promised anti-adversarial nature of

mediation, despite the consequences such a mentality has on their client.7

I believe that such a criticism is rooted in a fundamental distrust for those who

participate in mediation. Proponents don’t necessarily support mediation because of its

theoretical superiority; they support it because of its literal advantage. To say that

attorneys pursue unfair mediations because of their belief in mediation’s fairness neglects

the fact that many attorneys carry such beliefs because they have participated in such

mediations. Ultimately, the pro-mediation camp among attorneys supports mediation

because of its observed benefit, not its ideal benefit.

Another argument that is raised by Bryan against the lawyer-participant is the use

of “efficiency rhetoric and lawyer self-interest. Bryan believes that the public advocates

for mediation because of the notion that it is a faster and cheaper means of divorce. She

believes that “to fulfill the promise of greater efficiency, mediators will pressure both

lawyers and parties to reach agreements quickly. Reaching agreement frequently is easier

and faster when the lawyer forgoes formal discovery and abandons legal rights.” In order

to pursue the promised mediation, an attorney may theoretically ignore processes that

may benefit their client. Furthermore, an attorney may have a “burdensome case load,”

and “may be tempted to compromise her role as the client’s advocate if an agreement can

be produced quickly.7”

Once again, such an argument seems to be rooted in a fundamental distrust of

mediation. This argument’s premises rest upon unethical attorneys participating in

mediation. This is not necessarily an argument against mediation, or lawyer-participant

mediation, but rather attorneys. Bryan is associating a common ethical issue among

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attorneys to mediation in particular when the issue she raises is more with unethical goals

of attorneys. In other words, if attorneys pursuing mediation are completely ethical, then

this is not a concern. However because attorneys exist that are unethical, it is a concern.

But unethical attorneys do not only exist in mediation, therefore, such an argument

cannot be reserved for mediation only.

Conclusion

In reality, the process of divorce can never be truly perfected because its goals

transcend that which our legal system is capable of. The dissolution of the sacred bond of

marriage is highly complicated, and because of the various legal and societal rights each

member of a marriage has, every divorce will vary and be subject to the personal goals

and objectives of each party. However, when determining the best approach to such a

complicated issue, it is important to find an approach that gives all parties involved the

greatest chance at a fair and lasting settlement. Unfortunately, our traditional adversarial

approach can rarely gain such a settlement. The adversarial approach to divorce is a

competition, and forces former spouses to battle for property, children, and other tangible

resources. Not only is the method by which such property is distributed inherently unfair,

but the process itself is grueling for the parties involved, and more often than not

permanently ruins the relationships that should be preserved in order to successfully

maintain the family unit.

This is why I believe the mediation approach is the best alternative when pursuing

divorce. The mediation allows for a level of enforced cooperation and impartiality that

can offer a settlement that is fair for all parties, and also succinctly represents their

individual needs. While the two dominant approaches, the regulatory and the voluntary

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approach, have individual advantages that may foster a fair settlement, the absence of

individual representation allows for a client to have significantly less bargaining power

within the mediation. Instead, a lawyer-participant approach should be adopted in order

to ensure absolute impartiality by the mediator and fairness to each individual party.

While this process may not be perfect, it works towards a solution that is fair, effective,

and successful in achieving the end that it seeks to achieve: the dissolution of marriage.