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Bar Journal - Summer 2005

Mediated Divorce Agreements: Reconciling Equal Versus Equitable

By:



Imagine for a moment a divorcing couple.  Mr. and Mrs. Conflict have been married for 20 years.  They have two children approaching college age. They both have been attentive and caring parents despite their vastly different parenting styles. Their separation has been marked by anger and a lack of communication. They have consulted with attorneys who have mentioned mediation as an alternative to litigation, but the attorneys have each advised their potential clients that, because of their particular circumstances (see accompanying Fact Pattern), mediation is not likely to be successful and that they could probably “get more” through litigation. Neither Mr. nor Mrs. Conflict is enthusiastic about trying mediation.  Their mutual fear of the financial costs of litigation, however, has motivated them to try it.


Using Mr. and Mrs. Conflict as a case study, this article will focus on when, why, and how mediation can be the most effective method of addressing the numerous issues found in marital cases. Whether such issues are practical or perceived, emotional or financial, mediation is often the only time during the divorce process when a couple can sit together at a table, discuss all of their issues and determine for themselves what is fair.  This article will examine how mediation can assist the parties in understanding their conflict and help to transform the conflict by addressing each other’s needs and concerns. While litigating these cases may provide warring couples with a perceived need for their “day in court” the reality for litigants in family matters is that the court process, restricted by statutes and rules, falls short of their expectations for use as a weapon for “lesson-teaching” their spouse. At the end of the day, a client who wishes to punish his or her spouse via pronouncements from the bench will surely be disappointed. Worse still, the court order is unlikely to address the underlying issues of trust and communication between the parties, leaving the door wide open for ceaseless post-divorce litigation which never addresses the unresolved communication and trust issues.


Moreover, while the court has discretion, as a court in equity, to make decisions which allow for an unequal distribution of assets, it begins its evaluation of the case with the statutory presumption that “equal is equitable.”
1


There is no such presumption in a mediation.  The parties are free to contemplate how to address all of their issues, and to consider how matters of child custody, child support, spousal support (alimony) and the allocation of assets and debt can be resolved in the most equitable manner in relation to their specific circumstances, considering their underlying issues of trust, communication, financial integrity and, perhaps most importantly, their own sense of fairness.  A good mediator can help the parties to explore those issues and to assess what makes the most sense for them.

    
As noted by Jonathan M. Hyman, and Lela P. Love in their article on “Justice in mediation”,


The practice of mediation is deeply attuned to issues of justice.  To one unfamiliar with mediation, it might seem that mediation marks a flight from justice, a move to crude compromise or the abandonment of rights for the sake of making peace or saving time or money.  On the contrary, mediation brings to the fore the perennial questions of justice: Has there been a wrong (or several wrongs) and what is the fair correction that provides a just measure for the kind and degree of harm done?  What is a fair and just distribution of the resources available?  How can stability and community be restored in light of the wrong? What should a mediator do to try to assure that the process itself remains just?  Mediators like judges and arbitrators must attend to these issues.
2 

Attorneys and judges accustomed only to the adversarial model may be skeptical of how a mediator can assist the parties in achieving a just result in a particular case.  However, attorneys and judges who are conceptually open to re-evaluating their views of “fairness” and who are willing to set aside their biases in favor of litigation will be amazed at how mediation can transform an often intractable, seemingly irresolvable conflict into a paradigm for successful resolution created by the parties themselves.  In mediation, justice is not created by having the mediator act as a “pseudo judge.”3  It is not the responsibility of the mediator to determine the appropriate remedy. Rather, it is the parties who are empowered to determine the remedy themselves.  “The mediator must attend to the process, help the parties recognize the legitimacy of different perspectives of justice, and work towards a resolution that comports with the parties’ views of a fair and acceptable outcome.”4 


This author recently interviewed two leaders in the field of mediation in New Hampshire.  Gregory T. Martin, a family law practitioner and a New Hampshire
5
Certified Marital Mediator whose practice is located in Keene and Peter Wolfe
6, Clerk of the Sullivan County Superior Court, and an outspoken supporter of, and innovator in, the creation and integration of mediation programs into the New Hampshire courts.


Wolfe, describing the difficulties that attorneys and judges sometimes face with the concept of mediation, believes that the traditional statutory view of an equal split being equitable is hard to overcome.
7  Combined with the societal perception of what is “fair” attorneys’ and judges’ views of fairness as an equal division often leave no room for the parties to assess what is fair in their unique circumstances. 8 Aggravating an attorney’s biases further is a fear that any recommendation that results in a client agreeing to something less than equal could result in a malpractice suit against the attorney.  An attorney may feel that such a recommendation will not be viewed a “zealous advocacy” when, in fact, it is just that.9  Moreover, societal and reputation pressures that money equates to fairness and to a successful outcome distort the attorney’s objective view of the needs of his or her client in a particular case.


As Peter Wolfe noted, attorneys traditionally were called “counselors,” but we seem to have forgotten that role in favor of zealous advocacy at any cost, even when it may not make sense for a particular client in a particular case.  Part of the problem, too, in Wolfe’s view, is that attorneys are not listening to their clients as attentively as they should.  Without fully eliciting and understanding from the client’s perspective what is important and why it is important, an attorney cannot “counsel” the client as to whether an equitable rather than equal agreement makes the most sense. 


Think back to our case study of Mr. and Mrs. Conflict and ask whether it makes sense to have Mrs. Conflict stay in the house.   Recall that Mr. Conflict runs his business from the home, but Mrs. Conflict is currently residing there with the children.  Both Mr. and Mrs. Conflict have had an equal role in their children’s lives.  In a traditional case, both attorneys would advocate for their client to be able to reside in the marital homestead: the attorney for Mrs. Conflict on the basis that the children should stay in the home and not be uprooted; and the attorney for Mr. Conflict on the basis that his client should not have to relocate his business, and that and he can manage the children as competently as his wife can. 


What if, though, the attorney for Mrs. Conflict asked the following question of Mrs. Conflict: “Since you are concerned about Mr. Conflict’s driving with the children when he is drinking, would it make you more comfortable if Mr. Conflict lived in the house during his time with the children and you drove with the children to and from the marital homestead to your new home to cut down the drinking and driving risks?”  “Furthermore, Mrs. Conflict, Mr. Conflict’s business is based in the home.  Do you think it makes sense for him to reside in the home and for you to locate an alternate residence?” Such a question from an attorney encourages problem- solving and moves beyond the analysis of what an attorney can “get” for his or her client to what the client needs.


While it is part of the attorney’s role to be aware of what his or her clients need or want, many attorneys feel constrained by strategic and structural barriers in practice, which can preclude consideration of their clients’ practical issues in a non-legal framework.  Can or should an attorney try to address the concerns a client expresses that may run counter to the attorney’s own view of what he or she should attempt to secure for his or her clients?
10 This is, as yet, an unanswered question, but the solution is available if attorneys will consider it.  In a mediation setting, the mediator can help the parties thoroughly examine the facts and circumstances of the family’s specific situation and assist them in determining whether there is a solution that could provide a “win-win” solution for all of the parties.  

 

A Win-Win Solution


What would a “win-win” solution look like for the Conflicts?  It could be an agreement that Mrs. Conflict would move out of the marital home and permit Mr. Conflict to move back in.  Such an alternative would address her concerns of Mr. Conflicts’ drinking and driving while with the children.  It would also solve the problem of Mr. Conflict’s business location being at the marital homestead.  Most importantly, since Mr. Conflict will have that important issue addressed, it is possible that he would agree to spend his time with children at the house, at least preliminarily, and that he would not drink alcoholic beverages while the children were with him.


In the example above, the mediated solution of Mr. Conflict residing in the home begs the broader question of whether “mediation delivers justice.”
11 The simplistic response, of course, is to ask: “What is justice?”  In Peter Wolfe’s view, justice can be delivered if two conditions are met, first, that clients know their legal rights, and second, that clients are then able to self-determine how to integrate or decline those rights in their own case.12


In order for mediation to assist the parties in finding their own solutions that they will find to be fair, the mediator must ensure that the process is fair.  If the mediator has ensured a fair process and the parties have determined what is fair in their matter, then it is up to the parties, after mediation, to talk with their respective legal counsel about what a “win” is for them.  It is important that the attorney let go of his or her inherent bias toward getting as much as possible for a client and find out if what the client wishes to agree to is fair under their specific circumstances. Only when the attorney is willing to re-define what a “win” is for his or her client, will the attorney have truly acted as a “counselor” and not simply as a blind advocate.


Greg Martin’s view as both an attorney practicing family law and as a mediator is that attorneys as advocates often have trouble letting go of the crutch of the equal means equitable presumption in the statute.
13   This is true despite the fact that RSA 458:16-a specifically permits deviations from the presumption of equal being equitable.14  According to Martin, it is difficult for an attorney to permit his or her advocacy to include the notion that understanding a client’s interest, which may not fit neatly into a legal tenet, but which will satisfy a client’s need, is still effective advocacy.15   Therefore, if an attorney uses client satisfaction as the standard by which his or her work will be measured rather than by “how much” the attorney can get for the client in litigation, the attorney will have a much better opportunity to satisfy the client. 


Martin explains that attorneys may have to adjust their own sense of fairness to fit their clients’ needs.  It may make sense, for example, for a client to permit his or her child to remain in the marital homestead until the child attends college. The client might have to forgo instant cash for the value of his or her equity in the home until after the child moves out, but the client’s more important goal of permitting the child to remain in the same school district until the child graduates high school can be achieved.  If the client is willing to forgo payment of the equity to which she or he is entitled until the child is out of the home, then the attorney should acknowledge that the client understands his or her own needs rather than insisting that the home be sold at the conclusion of the divorce and convincing the client that selling the house should be his or her goal
.
16


The best-case scenario is for the attorney to listen to his or her client and to encourage the client’s self-determination by endorsing the client’s use of mediation.  While it is true that there is a delicate balance for the attorney to maintain in accepting and respecting the client’s view of fairness and satisfaction in the client’s own case, attorneys will be representing their clients more effectively if they carefully listen to and encourage their clients to make decisions which make the most sense for them.
17


When Gregory Martin is mediating cases, he will often thoroughly review with the parties how they came to their agreement so that the parties are better prepared to communicate with the attorneys who are reviewing the final language.  When questioned about an agreement they have made, the parties are more empowered to explain why they are willing to accept an agreement that may not appear “equal” to the lawyer.
18  If the attorney is truly an advocate for the client’s needs, he or she will be able to assess whether the agreement the client made, albeit unequal, is a good one for the client. If advocacy overrides that judgment, then the attorney has missed an opportunity not just to act as an advocate, but also to counsel his or her client in a manner that respects the client’s need for self-determination.19  So long as the client is aware of the law and is aware of the consequences of his or her decisions, attorneys should encourage self-determination in their work with clients.  In doing so, the attorney will help to ensure that agreements that are made in cases will be successful and will not result in post-divorce litigation over matters that the client did not understand or that he or she did not fully appreciate at the time the divorce became final.

 

Self-Determination Makes Agreements More Successful


To fully explore how self-determination during the mediation process can make agreements more successful, the key question for the attorney representing a client is to ask what is the added value of having a mediator assist the parties in resolving their conflict?   Research has shown that mediators can help parties put more information on the table and ensure that it is more reliable and less suspect than would be the case if the parties negotiated alone.  As a result, parties can enrich the informational environment, gain greater clarity and then go ahead as they would in negotiation and make decisions for themselves, but with more information.  Mediators can help parties understand and appreciate each other’s past and present actions, attitudes, motivations and positions more fully and accurately than they would if left to themselves.  The parties can thus avoid responses in negotiation that are based upon false assumptions about one another stemming from cognitive biases.  The implication of the theory, according to Baruch Bush, is that, with better information and less interpretive distortion (with the barriers lowered), settlements will be reached more often and on terms that come closer to optimum.
20 


The research on this topic has been divided into two categories: studies that are “evaluative” and those that are “procedural.”
21  The evaluative studies show that “mediation enabled the parties to deal with issues they themselves felt important; it allowed them to present their views fully and gave them a sense of having been heard; it helped them to understand each other.”22 The procedural studies show that parties prefer consensual processes like mediation. The main reason that people prefer a consensual process to that of adjudication or arbitration is that consensual processes offer a “greater degree of control, and hence they are seen by parties as subjectively fairer and are preferred, regardless of whether they ultimately lead to favorable outcomes. In other words, procedural justice research shows that parties care as much about how dispute resolution is conducted as they do about what outcome results; and consensual processes provide the ‘how’ that parties value most.”23


As noted in Baruch Bush’s article above, when parties are engaged in the mediation process, what they value is procedural fairness.  Interestingly, Bush notes that they do not seem to place as much value on “expediency, efficiency or finality of resolution.” He observes that not even the likelihood of a favorable substantive outcome is considered most important.  Rather, an “equally if not more highly valued feature is procedural justice or fairness, which in practice means the greatest possible opportunity for participation in determining outcome (as opposed to assurance of a favorable outcome) and for self-expression and communication.”
24


When lawyers who view mediation as a value-added process were interviewed, they said they believed that mediation helped structure the negotiation and provide more shared information which in turn permitted the attorneys to better advise their clients.  Also, clients were satisfied more when they had increased participation in their own case.  Finally, mediation provided a “setting” for communication in which clients were able to feel certain that they had been heard by both the mediator and the other party and in which “suspicions and misconceptions that clients tend to have about the other side are cleared up.”
25 According to Bush, unreliable information resulting from strategic maneuvering can be destructive to the quality of participation by the parties.  The value-added in mediation comes from improving the informational environment that, in turn, improves the quality of party participation.26 


The value added by the parties’ participation is that mediation’s assistance in lowering barriers to settlement simultaneously enhances procedural justice and vice versa.
27  Conducted properly, the mediation process should result, for both the disputants and their attorneys, in a greater ability to acquire necessary information with time to analyze it properly, along with a better mechanism for more productive communication. 


This notion is particularly important in marital mediation, when it is likely that the parties, if they have children, will have an on-going relationship with each other long after the divorce is concluded.  It is important to acknowledge that a divorce, when there are children, is never truly final.  The parties will be attending their children’s graduations and weddings together, and will, it is hoped, have on-going important relationships with their children and grandchildren.


In the short term it is important for attorneys to point out to their clients that human nature during the divorce often leads the disputants to demonize each other.
28   Martial mediation can “de-demonize” these parties who at one time presumably had a powerful emotional connection.  Mediation can, to the extent of rebuilding communication, address the parties’ disconnect and remind them that they do not wish “to be regarded by each other as demonic and ill-intentioned.”29 Participating in mediation enables the parties to deal with the conflict and the attendant issues in a way that preserves and respects their own past history and values that history so that it is that view of the parties’ relationship that is carried forward.  Mediation done well can provide the framework for more positive ways for the parties to view each other and to consider their own and each other’s needs as they move beyond the divorce despite serious conflict at the time of the divorce.  The parties’ eventual willingness to create a settlement agreement, recognizing that it is in their interest (and their children’s interests if children are involved) to approach the conflict in this way, often makes sense to the parties.


To get there, a good mediator must assist the parties to experience the basic tenets of transformative mediation, which involves the notions of  “empowerment and recognition.”
30  These concepts go beyond the standard mediation goals of finding good solutions for specific problems and ensuring fairness.31 Bush notes that mediation that fosters empowerment and recognition will produce effects or products (i.e., the agreement) that are precisely those valued most highly by the participants.32

 

What is 'Justice?'


Lawyers tend to see justice only as the application of law through the legal system’s substantive application of the law through the courts.  They traditionally view the application of statutory standards and judicial discretion as the only standards through which just and equitable disputes are resolved.
33  How well attorneys and the courts succeed is unknown and is the subject of on-going debate as a matter of public policy.34  However, attorneys have it within their power and purview to create, on an individual basis, the environment necessary to enable clients to discover just and equitable solutions to their conflicts. Encouraging client self-determination when the client is interacting with the other party within and outside of mediation and when the client is interacting with the attorney is critical. The attorney must educate the client on the laws, but then help the client to understand what a strict application of the law might mean for them. The attorney must avoid the temptation to become paternalistic and must assist the client in understanding all of his or her options, including those which may appear to the attorney to run counter to what the client could “get” if the matter were litigated.  Good family attorneys must permit themselves to return to the concept of attorney as counselor and must be willing to counsel the client on all the aspects of the client’s case, whether litigated or mediated.  A good counselor will not sit down with a client’s mediated proposed draft settlement and, after reviewing the document, but without fully understanding the client’s motivation, explain to the client what he or she could have gotten if he or she had litigated the case.  Since this author is fairly certain that crystal balls have negligible reliability, she believes an attorney should never make such comments.


Back now to our fictional couple, the Conflicts.  A traditional litigated solution to this couple’s divorce would at least include protracted litigation involving

 

1)   custody and visitation of the two children;

2)   the necessity for a guardian ad litem to investigate, report, and recommend which parent should have custody and what the schedule should be;

3)   restricted visitation for Mr. Conflict regarding his alcohol use and restricted visitation for the children with Mrs. Conflict’s new significant other;

4)   battling over the possession of the home;

5)   dividing up Mrs. Conflict’s Trust, which she views as money from her deceased parents, and

6)   the continued operation or dissolution of Mr. Conflict’s business.

  
They will not be able to address the issue of post-secondary education for the children in the court’s order.  Worst case, the parties will have spent thousands of dollars litigating, money that they agree would be better spent on their children. The Conflicts will be angry and frustrated at each other and by the legal process both with its complexities and its outcome, and in which only one of them will be the perceived winner.
35


Contrast that scenario with a negotiated settlement that the Conflicts have developed in mediation. They have reached an agreement that addresses all of their concerns, both legal and practical, that could look something like this:


- the parties agree that they will have joint legal and shared physical custody of the children. The schedule of time with the children will be reasonably equal, although for purposes of the school district of the children, their current address will continue to be their primary residence.  The parties agree that the school district in which they had the children was most important since the children have attended this school all their lives and they wish to complete their public education in this district. 


Mrs. Conflict will move out of the home and Mr. Conflict will return to the home to facilitate less driving with the children on his part, and to facilitate his business needs.  Mr. Conflict has agreed that he will not drink when he has the children with him and that he will certainly not use alcohol when driving.  As part of the agreement, Mr. Conflict has agreed to attend counseling and to join AA. 


The parties have agreed that if Mr. Conflict violates the agreement and drinks when the children are with him, the custodial schedule will be automatically suspended for a period of up to 30 days and will resume only with voluntary alcohol monitoring at random intervals during the visits and before and after driving. Mr. Conflict will resume counseling if it has stopped, and attendance at AA meetings if that has stopped.  The parties agree that these extraordinary measures would terminate after three months of good faith monitoring and attendance at the meetings, but would resume if the matter arises again. 


The parties have agreed that Mrs. Conflict will not introduce the children to her significant other, and in fact neither of them will introduce the children to their significant others until the parties have made a significant commitment to their new relationships.  The parties agree that they do not want the children to risk becoming attached to other adults who may not become a permanent part of their lives.  As a guideline, the parties have agreed that if either has a significant other in his or her life for more than 6 months, he or she may introduce the children to the person, giving advance notice to the other.


The parties agreed that child support in their case will come off the guidelines and will be $1,000 with Mr. Conflict as the obligor.  This will assist Mrs. Conflict with the expenses she will have for the children while she is still earning less money than Mr. Conflict, but will not create taxable income for her.  The parties agree that the child support in this amount will be paid until the second child is in college.


Although the parties understand that the New Hampshire courts cannot require contribution by parents to their children’s college expenses, the Conflicts agree that their children’s college education is of paramount importance to both of them and they are willing to share equally the cost of college to the extent of anything not covered by loans or grants attributable directly to their children.  They both understand that this provision will likely be unenforceable. Nevertheless, they want it in their agreement as a commitment to each other and to their children.


Since the parties have agreed not to sell the house to divide the equity in it until the children are in college, they have agreed to wait to distribute the equity.  Both parties will, in the future, benefit from any increased equity in the home.  The parties have agreed that they will each keep their own retirement accounts.  Concerning the issue of Mrs. Conflict’s Trust, the parties have agreed that Mrs. Conflict will access only the income from the Trust (if necessary) while she is alive but that she will forgo access to the Trust principal. She shall designate the children as equal beneficiaries under the trust at her death so that the children will receive, at a minimum, the trust corpus plus any income that has been reinvested in the trust.


The parties agree that Mr. Conflict shall be entitled to his business free and clear of any interest of Mrs. Conflict.  However, Mr. Conflict has agreed to make a one-time property settlement payment in the amount of $ 100,000 to Mrs. Conflict, which will assist her with the purchase of an alternate residence nearby.


Mrs. Conflict has agreed to keep Mr. Conflict on her health policy for as long as possible and that once Mr. Conflict is not eligible, he will take on payment of the costs of COBRA coverage until he finds alternate coverage.


On close examination of this agreement, an attorney could have a variety of reactions that would involve explaining what his or her client is giving up unnecessarily.  However, a counselor will look at the agreement in the context of what the parties are trying to accomplish.  A counselor will see that “equity,” as distinct from “equality” can support distributions (and accommodations) other than an even split.
36   The concept referred to by professors Hyman and Love is known as “Pareto efficiency.”37  The concept “asks one to consider, for any given or proposed distribution of resources, whether there is another possible distribution that would make at least one party better off without making any other party worse off.”38  It seems a common sense notion to apply the concept of the “Pareto efficiency” in marital mediation cases where it is clear that the parties may be able to “relinquish things of low personal value if those things reap enormous benefit for others.”39 


Clearly, Mrs. Conflict’s decision to give up possession of the house in exchange for increased safety of her children and for Mr. Conflict’s commitment to engage in alcohol counseling is a good example of the benefits of the application of the “Pareto efficiency” concept. Successful mediations should be able to assist the parties in understanding how this concept can be used to facilitate an agreement between them.  An attorney reviewing such a carefully negotiated agreement has a duty to his or her client to listen to and then to counsel the client, but not to undo the agreement in favor of an agreement that the attorney’s own biases suggest is more appropriate. On the contrary, attorneys must review the agreement (assuming a fair process was in place) with the understanding that the parties have reached the agreement in consideration of balancing their needs, repairing past harms, and addressing future concerns in a way that makes the most sense for them.

 

Conclusion


Mediation is an underutilized resource in marital cases even though its effective application can greatly benefit the parties by promoting self-determination in negotiating a settlement that is right for them.  While the agreement they come to may not comport with the statutory definition of “equal” it more than addresses, for a given couple, what is equitable and what will work for them. 


We as practitioners have to be willing, then, to understand when equitable can mean much more than equal in a particular case and be willing to listen to and to counsel clients accordingly.  If we do so, our clients will be more satisfied, and you may be more satisfied as a practitioner knowing that you have supported your client’s agreement which includes the framework for future successful interactions between your client and his or her spouse.  It will, no doubt bring a smile to your face when you see your client sitting with his or her ex-spouse at their child’s graduation, two years after you reviewed their divorce agreement.

 

Endnotes


1.   RSA 458:16-a Property Settlement.

      ...II. When dissolution of a marriage is decreed, the court may order an equitable division of property between the parties.  The Court shall presume that an equal division is an equable distribution of property, unless the court establish as trust fund under RSA 458:20 or unless the court decides that an equal division would not be appropriate3 or equitable after considering one or more of the following factors:

(a) The Duration of the marriage.

(b) The age health, social or economic status, occupation, vocational skills, employability, separate property, amount and sources of income, needs and liabilities of each party.

(c) The opportunity of each party for future acquisition of capital assets and income.

(d) The ability of the custodial parent, if any, to engage in gainful employment without substantially interfering with the interests of any minor children in the custody of said party.

(e) The need of the custodial parent if any, to occupy or own the marital residence and to use or own its household effects.

(f) The actions of either party during the marriage that contributed to the growth or diminution of value.

(g) Significant disparity between the parties in relation to contributions to the marriage, including contributions to the care and education of the children and the care and management of the home.

(h) Any direct or indirect contributions made by one party to help educate or develop the career or employability of the other party and any interruption of either party's educational or personal career opportunities for the benefit of the other's career or for the benefit of the panties marriage or children.

(i) The expectation of pension or retirement rights acquired before or during the marriage.

(j) The tax consequences for each party.

(k) The value of property that is allocated by a valid prenuptial contract made in good faith by the parties.

(l) The fault of either party as specified in RSA 458:7 if said fault caused the breakdown of the marriage, and;

(1) caused substantial physical or mental pain and suffering; or

(2) resulted in substantial economic loss to the marital estate or the injured party.

(m) The value of any property acquired prior to the marriage and property acquired in exchange for property acquired prior to the marriage.

(n) The value of any property acquired by gift devise or descent

( o) Any other factor the Court deems relevant.

2.   Jonathan M. Hyman and Lela P. Love, If Portia were a Mediator: An Inquiry Into Justice in Mediation. Clinical Law Review, 9 Clinical L. Rev. 157, 158 (2002).

3.   Hyman and Love.  Id. at page 158.

4.   Id.

5.   Gregory Martin, Esquire is a practicing attorney and a certified marital mediator.  He is an instructor at Alternative-A Center for Mediation and Training located in Keene, NH.

6.   Peter Wolfe Esquire, is the Clerk of the Sullivan County Superior Court.  He is coordinator of the Superior Court Rule 170 mediation program and has helped develop the Probate Mediation Program and the Marital Mediation programs in the Superior Court and Family Division Courts. 

7.   Interview with Peter Wolfe, March 4th, 2005.

8.   Id.

9.   Id.

10. Id.

11. Id.

12. Id.

13. Interview with Gregory Martin, Esquire, March 4, 2005. 

14. Attorney Martin citing 458: 16-a II (a) through (0).

15.       Id.

16. Id.

17. Id.

18. Id.

19. Id.

20. Baruch Bush, What Do We Need a Mediator For? Mediation’s “Value- Added”for Negotiators. ( Ohio State Journal on Dispute Resolution ( 1996), (1, 17).

21.       Id. at page 17.

22. Id.

23. Id.

24. Id. at page 23.

25. Id.

26. Id. at page 26.

27. Id.

28. Id. at page 28.

29. Id.

30.       See Generally, Bush and Folger, The Promise of Mediation, The Transformative Approach to Conflict, Jossey-Bass (2005) 

31.       Id. at page 75.

32. Baruch Bush, What Do We Need a Mediator For? Mediation’s “Value- Added” For Negotiators. ( Ohio State Journal on Dispute Resolution ( 1996), (30-31)

33. Jonathan M. Hyman and Lela P. Love, If Portia were a Mediator: An Inquiry Into Justice in Mediation. Clinical Law Review, 9 Clinical L. Rev. 157, 162 (2002).

34. Id.

35. The writer is not suggesting that Mediation is the answer in every case.  There are some cases in which the only solution is through the traditional litigation process. However, unless there is domestic violence in a case that would necessitate detailed screening to determine if mediation is appropriate, mediation should be viewed as a possibility even in cases where the differences between the parties seem insurmountable.  Mediation should not be seen as a possibility only in cases where the parties generally “get along” and want to work things out amicably.  In fact, if the parties are getting along that well, a mediator may not be needed at all.  Rather, the value of mediation is that it can promote empowerment and recognition in parties who cannot communicate at all, and transform an otherwise intractable dispute into a positive resolution of the instant dispute and a rubric for on-going resolution into the future when post-divorce differences arise.  Failure to develop an effective communication system through mediation will ensure that the parties will be back for ongoing-unending litigation that will never resolve the underlying conflict, which will have nothing whatsoever to do with the reason the parties are in court.

36. Jonathan M. Hyman and Lela P. Love, If Portia were a Mediator: An Inquiry Into Justice in Mediation. Clinical Law Review, 9 Clinical L. Rev. 157, 169 (2002).

37. Id.

38.       Id.

39.       Id.

 

Author

Attorney Karen J. Borgstrom, of Loftus & Borgstrom in Lebanon, is a Certified Marital Mediator, a Certified Probate Mediator and is a volunteer mediator for the Superior Court’s Rule 170 alternative dispute resolution program. She is currently a member of the board of the New Hampshire Conflict Resolution Association and a member of the New Hampshire Marital Mediation Certification Board. She operates a mediation practice under the name Agreements Unlimited.

 

Fact Pattern:

Mr. & Mrs. Conflict Reluctantly Consider Mediation

The Conflicts jointly own a home worth about $250,000 with available equity of about $100,000.  They each have retirement accounts, although Mr. Conflict has been in the work force longer.  They both work, but their incomes are not equal. Even though he only has an undergraduate degree, he earns about $20,000 per year more than Mrs. Conflict who has a Ph.D., which in her field would lead to average earnings of about $80,000 per year. However, Mrs. Conflict has been unable to realize her full salary potential since she and Mr. Conflict mutually agreed to have her stay at home while their children were young. Mrs. Conflict has now re-entered the workforce and is making about $50,000 a year.  As a sole proprietor of a successful business he has developed, Mr. Conflict earns about $70,000 a year. The value of the business, based upon company assets, is approximately $250,000 and it is located in the home. 


The parties have about $25,000 in credit card debt and other loans, not including the mortgage.  They jointly own two cars, some antiques and other assorted personal property.  Mrs. Conflict is the beneficiary of a trust set up by her parents (now both deceased), over which she is the Trustee and which provides her with absolute discretion to receive income and access the principal if she so chooses.  The value of the trust is currently $200,000, and it earns about $20,000 per year.  The family is covered on Mrs. Conflict’s health insurance.  Since Mr. Conflict is self-employed, he will not have health insurance available at a reasonable cost if he is removed from Mrs. Conflict’s policy.


Knowing their practical circumstances, imagine now what Mr. and Mrs. Conflict’s personal circumstances are, and what has brought this 20-year marriage to an end.  Mr. Conflict is a hard-working fellow who occasionally drinks too much. He says he can manage his drinking, and asserts that it has never affected his work or his relationship with his wife.  In fact, Mr. Conflict does work hard for his family but has, on occasion, driven his car after drinking; sometimes, with his wife and children along. Mrs. Conflict disagrees that Mr. Conflict is able to control his drinking.  Distrusting him for some time, she has tried to control his drinking by removing alcohol from the home or refusing to go out with friends when drinking will be part of the activity.  Mrs. Conflict has felt lonely and out of touch with Mr. Conflict.


Upon rejoining the workforce, Mrs. Conflict found that she had much more in common with a colleague than with her husband.  After she had been involved in a relationship with this colleague for about eight months, a friend of theirs told her husband about it.  Mr. Conflict was devastated, as he did not see any problems with the marriage.  Mrs. Conflict did not deny the relationship with Colleague but stated that it was the alcohol consumption and not the affair that has caused the breakdown of the marriage.  Both Conflicts are very angry.  Communication between them is at an all-time low.  They have both been talking to the children about their frustrations with each other and have not been able to agree on how to divide their time with the children while they are separated and approaching the divorce.


Currently, Mrs. Conflict is in the home and Mr. Conflict has found an apartment.  This is problematic for him because the business he runs is in the home and all of his business records and equipment are located there. 


Mr. Conflict is considering filing a fault divorce in the Family Division.  While Mrs. Conflict is upset by this and worries what it may do to her reputation and Colleague’s reputation, she is especially angry because she does not believe that the relationship with Colleague is the reason the marriage is ending.  She is convinced the marriage is over because of Mr. Conflict’s denial of what she feels is his failure to recognize his problems with alcohol. She is afraid to let the children drive with him, or be alone with him because they may be at risk if he drinks when they are with him, or worse, if he drinks and drives with them in the car.

The Conflicts have tried to speak to each other since their separation a month ago, but they cannot seem to communicate. Every conversation degenerates into a fight.  The Conflicts have each consulted with attorneys, but neither has retained an attorney to represent them.  They each have been counseled about court procedures and the potential financial and emotional costs of the litigation process. They were also told by the attorneys with whom they consulted that mediation is an alternative to litigation, but neither attorney believed mediation would be successful and each advised their potential clients that it was likely that they could “get more” through litigation. Neither Mr. nor Mrs. Conflict is enthusiastic about trying mediation.  Their mutual fear of the financial costs of litigation, however, has motivated them to try it.

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