Friday, October 30, 2020

In a recent webinar sponsored by The Jewish Link and a divorce litigator, the question of mediation came up. Not surprisingly, an esteemed community rabbi and a therapist readily praised the virtues of mediation as their first recommendation for couples who are getting divorced, to try to work things out—without court. Mediation, as described by the therapist, is a setting that seeks to reach “win-win” resolutions. Not surprisingly, although also confirming the benefits of mediation, the litigator had some reservations. Since there was no mediator to provide a more nuanced response, I would like to take the opportunity in this column to clarify some questions raised about mediation.

Frankly, I have seen the unfortunate consequences of too many couples in our shuls who seek out matrimonial litigators to get the protection they think they need, or get the revenge they think they deserve. I have watched too many of these couples spend money that they don’t have, wasting years on legal battles that provide no benefit for the family whom the court system seemingly is there to serve. It is because of these families, and potential divorcing families of the future, that I write these “Mediation Matter” columns. I want to make sure that members of our community are well informed of what mediation and collaborative divorce are and are not, so they can make informed decisions as to the best process available to help them through the process of divorce (assuming, of course, that there is no choice to avoid the divorce itself).


Being Informed of the Options to Divorce

There is a reason why all New Jersey courts require that upon a client filing for a divorce, both the client and the attorney have to certify that the client was informed of the alternative ways in which s/he can get divorced. These divorce option include negotiation, mediation, collaborative divorce, arbitration and litigation. The reason for this requirement is that all too often clients, following advice from counsel, file in court first, and ask questions later. While sometimes it is truly necessary to file a court action, especially in cases of domestic violence, emergency parenting or financial crises, the vast majority of divorces require no court intervention until the very end of the divorce process, when a couple who has reached an agreement seeks to have the court “rubber stamp” their agreement and “put through” their uncontested divorce.

To be clear, divorce is a scary time and clients should ensure that they are making informed decisions and have the legal protection they deserve. But, in practice, the court-required certification does not necessarily ensure that clients understand the various processes, and does little to deter clients from starting a court divorce proceeding, which opens up a universe of court rules, judicial hearings and legal expenses.

Knowing that there are options and understanding the goals and benefits of each option are essential to help divorcing couples make the right decisions for themselves and their families.

So, let’s start with the basics of mediation. What is the goal of mediation?

The Goal of Mediation

While different mediators practice differently, to my mind the goal of mediation is not just to get to a deal. If that were the case, then any agreement reached, whether fair or not fair, whether consistent with the law, or whether in the best interests of the children, would not make a difference as long as a deal is reached. Reaching a deal should not be the goal of mediation, as it should not be the case when a lawyer is advocating for their client. It is also not the goal in mediation to get the best deal for one side and the worst deal for the other side, as is often the case in traditional adversarial divorce proceedings or negotiations.

To my mind, the goal of mediation is to help a divorcing couple “problem-solve” a way to satisfy the needs and concerns of all family members as much as possible. By framing the goal this way, mediation provides a framework to convert a conflict into a problem that needs to be solved together. For example, negotiations as to who has custody of the children are framed as how will parenting time be optimized to best provide for the needs of the children. Debates over whether to sell or keep the home become discussions over how to balance the needs of stability for the family on the one hand while providing a realistic financial budget for the family who now needs two homes on the other. And conflicts on how much and how long alimony or child support should be paid are framed as how can the needs of the family continue to be met and be as close as possible to the lifestyle that the family was accustomed to living.

Indeed, there are many nuances here, and mediation provides a safe place to work through these conflicts together, in a problem-solving way, instead of pitting parties against each other, in an adversarial or destructive way.

The goal of mediation is to provide a safe place to have these conversations so they can be as productive as possible. An experienced mediator should not just help a divorcing couple have the conversations, but help them talk and decide in an informed way. This means being informed about the law, informed as to what lawyers might say about their case, informed of the financial decisions that they are making etc. Mediation should not just be about deal-making. It is about the best decisions that a couple can make for all family members.

In my next column, I hope to address another question raised about mediation: When dealing with businesses, cash or other complex financial issues, is mediation still appropriate? I look forward to spelling this out.

Adam Berner specializes in mediation and collaborative family law and is the owner of the Berner Law & Mediation Group, with offices in Manhattan and Hackensack. As a pioneer in the family dispute resolution field for the past 25+ years he has served as president of the Family & Divorce Mediation Council of NY and founding president of the NJ Collaborative Law Group. In addition to his private practice, Adam is a mediation trainer and adjunct professor at YU’s Cardozo School of Law, where he teaches mediation and collaborative law. Additional information can be found at www.MediationOffices.com.