Can't We Learn from Other People's Mistakes?

Posted By Mark Baer || 2-Nov-2015

Using a retired judge or anyone else to "evaluate legal positions" is NOT mediation, regardless of what people may call it. Anyone can very easily look up the definition of mediation and what is involved. Mediation 101 is to get people off of their positions by flushing out what lies beneath those positions.

There are only so many ways to try and convey the information I keep sharing online.

On October 31, 2015, someone told me about a current divorce case and how it is being handled. They do not believe that the law on certain issues is "fair."

This same person just advised me that the case in now in mediation before a retired judge. The "mediator" is merely advising the parties and their respective attorneys how they would rule on the case if they were still on the bench and the matter appeared before them. That, my friends, is evaluating legal positions, not mediation. The "mediator" is also doing "shuttle mediation," meaning that the parties and their attorneys are kept in separate rooms and the "mediator" shuttles back and forth in an effort to settle the case. People formally trained in mediation tend to prefer that the mediation take place with everyone in the same room, as much as possible.

The following are some of the comments I made to to this individual:

I repeatedly remind people that it is a grave mistake to confuse “legal justice” with “fundamental fairness.” If you want "fairness," then you have no business seeking "legal justice." That means -- work outside the legal system through mediation or collaborative law.

I have long advised people not to handle their divorces outside of mediation or the collaborative law process, if at all possible. Courts can’t do a great many things and when people are fighting against each other, rather than working with each other, they won’t give their spouse things that are unattainable in a court of law.

I really wish that more mediation minded attorneys had been retained in this situation. Unfortunately, they are few and far between. Meanwhile, litigators are far more sought after than mediation-minded lawyers. I have won numerous honors and awards in my capacity as a family law attorney, mediator, and collaborative divorce practitioner. Neverthless, since I don’t want litigated cases any longer, I have time to write prolifically and use the social media as I do. That should tell you something. I am much happier now that I don’t litigate, but I feel it in my wallet because people are hellbent on retaining destructive litigators.

The stress you are describing as a result of the divorce is exacerbated by the way it is being handled because they are involved in litigation (or at least litigated negotiation), which is a destructive process and I keep saying just that. The “unfairness” that will result from not working outside the legal system and resolving their issues on a “needs and interests” basis, rather than a “legal rights and obligations” basis is quite clear. That being said, for people to agree to do something that is not legally required under the law requires the exact opposite of fighting against one another. People don’t tend to give things they don’t have to give, when they are behaving in an adversarial manner. Furthermore, it is far more likely that people will be willing to make such concessions, the earlier they get into mediation because litigation (and litigated negotiation) exacerbates the conflict level and breeds paranoia.

May I point out that I have consistently said that being a retired judge does not make a person a mediator. Unless the retired judge is highly emotionally intelligent, has been trained in mediation, and has mastered that art, the retired judge is nothing more than a retired judge. What do judges do? They judge. Mediators don’t judge.

Mediators have a COMPLETELY different skill set. I have repeatedly said that since lawyers don’t know what mediation is and are not comfortable with emotions, they use retired judges as “mediators” and call “soft-arbitration” mediation. I am afraid that a retired judge “mediator” is merely going to advise people how the matter would be handled in a courtroom, in the retired judge’s opinion. Does that sound like what I described as mediation?

Real family law mediators know better than to conduct shuttle mediation, which is what you have described, at least to the extent they can avoid it.

People can only give what they have and teach what they know. I have more to give and teach than the vast majority of my colleagues and that can be gleaned just by reading some of my articles. If people don’t appreciate those skills and knowledge and want to hire traditional attorneys, so be it. I can only do what I have been doing, which is trying to educate a public that doesn’t care to listen and learn. I’m glad that you apparently finally “get” what I have been saying.