"Mediation" as an "Alternative Form of Litigation"

Posted By Mark Baer || 12-Sep-2015

Last night, someone was telling us that she "mediated" her divorce many years ago and that her ex-husband failed to comply with the "mediated" agreement.


I then told her that I found that odd because the research is very clear that when people enter into agreements in mediation through self-determination, the compliance rate is significantly higher than when people are ordered to do something.


I asked her to describe the "mediation" and she told me that the "mediator" told them what was most likely going to occur in court and encouraged them just to agree to such terms without incurring any further costs litigating.


I then replied that what she described as "mediation" is really "evaluative mediation," "soft arbitration," or as I like to call it - "an alternative form of litigation." Such "mediation" has NOTHING to do with self-determination. Such "mediation" has nothing to do with each person's respective needs, interests, values, goals and fears. Such "mediation" is not really mediation, as is described in the Committee Notes on Page 4 of the "Mediator Program for Mediation Excellence - Mediation Descriptions."


In fact, other than putting an end to "litigation" (at least temporarily), such "mediation" fails to address any of the problems with litigation, which is why I prefer to call it "an alternative form of litigation."


Judge Michele Lowrance explained this reality VERY clearly in her book, "The Good Karma Divorce" as follows:


"In my personal life, when divorced people discover I am a member of the judicial system, they are exploding to tell me how the system has failed them. People want to believe that life should be fair and bad things should not happen to good people. They expect emotional injustice to be righted by legal justice.... The unfortunate fallacy in believing that emotional injustice can be righted by the legal justice system creates anger and feelings of being cheated. This sense of being treated unfairly happens not just in those cases in which there was all-out warfare, but even in those in which disputes were eventually settled. Years after the divorce both groups of people understandably still have enduring bitterness and quiet, brooding grudges."


Sadly, as I have said in so many of my articles, attorneys typically utilize this form of "mediation" when handling their family law matters. This explains why if you look at the list of "mediators" at ADR Services, Alternative Resolution Centers, JAMS, etc., you will see that a VERY high percentage of the "mediators" are retired judicial officers. If you look at the profiles for those retired judicial officers, you will see that VERY few of them have ever received any form of mediation training - even basic mediation training. Immediately prior to becoming "mediators," they were judicial officers. Judicial officers JUDGE. Why should anyone expect that retired judicial officers who act as "mediators" and have not been sufficiently trained in mediation should be able to do anything other than JUDGE? As an aside, most of the lawyers on those panels approach "mediation" in a similar manner. THESE ARE THE PANELS FROM WHICH MOST ATTORNEYS SELECT THEIR "MEDIATORS."


IF YOU WANT LITIGATION OR "AN ALTERNATIVE FORM OF LITIGATION," RETAIN LITIGATORS BECAUSE YOU WILL GET JUST THAT. HOWEVER, IF YOU DON'T WANT LITIGATION OR "AN ALTERNATIVE FORM OF LITIGATION," YOU HAVE NO BUSINESS RETAINING A LITIGATOR.


"By handling family law cases in the traditional adversarial manner, people turn their case into a vampire." THIS IS TRUE, EVEN WHEN "ALTERNATIVE FORMS OF LITIGATION" ARE USED.