Alternative Dispute Resolutions:
Arbitration
and
Divorce Mediation
Indpenendent Research and Writing
Texas Tech School of Law
Professor Daniel H. Benson
Spring 1984
Juda M. Hellmann
TABLE OF CONTENTS
Page
Introduction
1
THE HISTORY OF ARBITRATION
5
What is Arbitration?
6
Uniform Arbitration Act (U.A.A.)
7
Validity of an Arbitration Agreement
8
Federal Arbitration Act
9
Constitutionality of the U.A.A
11
Mandatory Arbitration
12
Voluntary Arbitration
13
Court-Annexed Arbitration
15
Pennsylvania's Court-Annexed Arbitration
16
New York's Arbitration
16
MEDIATION AS AN ALTERNATIVE TO LITIGATION IN DIVORCE . . 18
What is Divorce Mediation?
21
Why Mediation?
24
The Process of Divorce Mediation
25
Fairness of Divorce Mediation
28
Protection of Children
29
Property Division
30
Ethical Considerations in Mediation
31
CLOSURE
34
0 0 1 71
The obligation of our profession is, or has been
thought to be, to serve as healers of human
conflicts. To fulfill our traditional obligation
means that we should provide mechanisms that can
produce an acceptable result in the shortest possible time, with the least possible expense, and
with a minimum of stress on the participants.
That is what justice is all about, (emphasis added)
Chief Justice Warren E. Burger,
Annual Report on the State of
the Judiciary, (1982).
Chief Justice Warren E. Burger in his 1982 State of the
Judiciary address sparked many attorneys, judges and potential
clients into questioning the value of our present judicial system.
Chief Justice Burger explained that many thoughtful people,
within and outside of the legal profession question whether the
legal profession is fulfilling its historical and traditional
obligation of being healers of human conflicts.
Chief Justice
Burger admits that attorneys today are becoming part of the
problem instead of the means to a solution, and that one reason
our courts have become overburdened is that Americans are increasingly turning to the courts for relief from a range of personal
distresses and anxieties.
He believes that remedies for personal
wrongs that once were considered the responsibility of institutions other than the courts are now boldly asserted as legal
"entitlements."
A strong yet accurate statement made by the
Chief Justice is that the courts have been expected to fill
the void created by the decline of church, family, and neighborhood unity."*"
The conventional forum for dispute resolution, the court,
has become a beleaguered institution.
1
Oftl 2 2
Consequently the quality
of justice is endangered.
With crime rates soaring across the
nation, civil litigation rocketing to new highs, and a tight
economy during the eighties, the situation soon could deteriorate
even further.
No authority is needed for the proposition that
overcrowded court dockets lead to delay, and a delay of justice
is itself an injustice.
warnings.
The signposts of history display their
The Magna Carta contained a pledge against it:
"To
no one will we sell, to no one will we deny or delay right or
justice."
2
Juvenal, the first century Roman satirical poet,
cynically grieved that "the time is gone for hearing, and the
3
tedious suit goes on."
Still earlier, the prophet Habakkuk
complained of the benumbered nature of the law, noting that
"justice is never in action for evil men hamper the just till
justice goes awry."^
In 1975 Professor John Barton of Stanford cautioned that:
As implausible as it may appear, . . . increases
over the last decade suggest that by the early
21st century the federal appellate courts alone
will decide approximately one million cases each
year. That bench would include over 5,000
active judges, and the Federal Reporter would
expand by more than 1,000 volumes each year.
Future prospects are neither comfortable nor comforting.
The litigation explosion during this generation is suggested by the following figures.
From 1940 to 1981 annual
federal district court civil case filings increased from about
35,000 to 180,000.
This almost doubled the yearly caseload
per judgeship from 190 to 350 cases.
The real meaning of these
figures emerges when one realizes that federal civil cases
increased almost six times as fast as the U.S. population.
5
From 1950 to 1981 annual court of appeals filings climbed
from over 2,800 to more than 26,000.
The annual caseload per
judgeship increased from 44 to 200 cases.
That growth was
16 times as much as the increase in population.
A similar
trend took place in the state courts from 1967 to 1976, where
appellate filings increased eight times as fast as the population, and state trial court filings increased at double the
rate of population growth.
It appears that people tend to be
less satisfied with one round of litigation and are demanding
6
a "second bite at the apple" far more than in earlier times.
Attorneys know that litigation is not only stressful and
frustrating but expensive and frequently unrewarding for litigants.
A personal injury case, for example, diverts the
claimant and entire families from their normal pursuits.
Physicians increasingly takenoteof "litigation neuroses" in
otherwise normal, well-adjusted people.
This negative impact
is not confined to litigants and attorneys.
Lay and professional
witnesses, chiefly the doctors who testify, are also adversely
affected.
Chief Justice Burger stated that a common thread pervades
all courtroom contests: "lawyers are natural competitors, and
once litigation begins
they strive mightily to win using every
7
tactic available."
Business executives are also competitors,
and when they are in litigation, they often transfer their
normal productive and constructive drives into the adversary
contest.
Commercial litigation takes business executives and
3
(11)1 - 4
their staffs away from the creative paths of development and
production and often inflicts more wear and tear on them than
the most difficult business problems.
As Woodrow Wilson once observed, "a constitutional governg
ment is as good as its court; no better, no worse."
Through
our judicial system may be the best ever contrived, it is presently incapable of satisfactorily meeting its assigned task.
There are newspaper accounts of cases which continue not weeks
or months, but years.
It is difficult to imagine that over
200 years ago the authors of our constitution and of our judicial system ever contemplated that cases would monopolize one
judge for many months or even years.
A case recently terminated
has been in court 13 years and has largely occupied the time
of one judge for half that time, 9 with total costs running into
hundreds of millions of dollars.
In 1960 there were only 35 federal trials that took more
than one month.
five times.
By 1981 these protracted cases multiplied
All litigants standing in line behind a single
protracted case—whether it is a one-month, a three-month, or
a longer case—are denied access to that court.
This becomes
more acute if that litigant cannot recover interest on the
award or is allowed interest at 8 percent while paying double
or more on a home mortgage or other debts.
Chief Justice Burger, in his address, urged that it is
time to utilize the inventiveness, the ingenuity, and the
resourcefulness that have long characterized the American business
4
(Mil v 5
and legal community to shape new tools.
actually old tools.
These new tools are
Chief Justice Burger suggested arbitration,
mediation and conciliation as alternative dispute resolutions.
This commentary will survey arbitration and divorce mediation
with a subsequent paper covering Christian Conciliation.
These
three methods are viable alternative dispute resolutions.
THE HISTORY OF ARBITRATION
Arbitration is no new wonder.
Ancient societies, more than
25 centuries ago, developed informal mechanisms, very much like
mediation and arbitration to resolve disputes.
In the time of Homer, for example, the community elders
served as civil arbitrators to settle disputes between private
parties.
By the fourth century B.C., this practice was a settled
part of Athenian law.
Commercial arbitration was a common prac-
tice among Phoenician traders and the desert caravans of Marco
Polo's day and later in the Hanseatic League.
American arbitration generally can be traced back at least
to the 14th century England when trade guilds and trade fairs
adopted arbitration ordinances.
Beyond the mercantile arbitra-
tion systems, there was also common law arbitration.
An early use of arbitration in America was of Dutch origin.
In 1647, in what is now New York City, an ordinance created the
"Board of Nine" which arbitrated minor civil and mercantile
disputes.
In colonial Connecticut, Pennsylvania, Massachusetts
and South Carolina various arbitration mechanisms were established
to deal with debt or trespass and boundary disputes.
As early
as 1682 the Assembly of West New Jersey enacted a law which
5
(MM
provided:
"And for the preventing of needless and frivolous
suits Be it Hereby Enacted . . . that all counts of Debt . . .
of Slander . . . Accounts whatsoever not exceeding twenty
Shillings, . . . Arbitration of two [neutral] Persons of the
Neighborhood, shall be tendered by some one Justice of the
Peace who shall have Power to summon the Parties.. .
Despite the early use of arbitration in the United States
and despite legislative efforts to secure a prominent place
for the process in this country, two strong adversaries emerged.
First, some judges fearing that arbitration would deprive them
of their jurisdiction, jealously guarded their powers and resisted arbitration.
Second, attorneys, mistakenly fearing that
arbitration would adversely affect their practice, zealously
pursued court litigation.
What is Arbitration?
In the simplest terms, arbitration is the submission of
a dispute to a neutral party for resolution through binding
decision.
To most practitioners in the legal arena, arbitration
refers to (1) the resolution of a grievance filed under a
collective bargaining contract or (2) the resolution of a dispute pursuant to a clause inserted in a partnership agreement,
insurance policy or commercial contract.
In the latter cate-
gory, attorneys traditionally think of the possibility of
arbitration at the time they are drafting the agreement or when
a dispute has arisen under an agreement containing an arbitration
clause and either they or the other side demands arbitration.
6
(WVi?.7
This is a very limited use of a valuable dispute resolution
mechanism.
Unless prohibited by statute or public policy,
practically any dispute may be submitted to arbitration provided the parties have agreed to use arbitration to resolve
their controversy and have manifested that intent in a contract
or arbitration agreement.'*""1'
An agreement to arbitrate is essentia.lly a contract to
submit a dispute for resolution to a private court and some
state legislatures have declared those agreements valid and
enforceable in a public court.
Non-binding arbitration is
sometimes used in public sector collective bargaining cases,
but the fundamental presumption behind arbitration is that the
arbitrator's award will represent the final determination of
the dispute.
Although there are provisions for seeking judicial
relief from an arbitrator's award, the grounds for vacating
the award are narrow and are generally limited to the misconduct or bias of the arbitrator.
It is important to stress that an arbitration hearing is
12
not a trial.
Under the Uniform Arbitration Act
, parties
have the right to present material evidence, cross-examine
witnesses and be represented by a lawyer.
The arbitrator has
the authority to subpoena documents and witnesses but otherwise
the court rules of procedure and evidence generally do not
i 13
apply.
Uniform Arbitration Act (U.A.A.)
In 1955, the National Conference of Commissioners on Uniform
7
001 ?s
State Laws proposed the U.A.A.
Since that time, approximately
14
half of the states have enacted statutes modeled after it.
Arbitration today is becoming more and more popular as a form
of dispute resolution, and thousands of cases are decided by
arbtirators every year under the U.A.A.
There are several reasons for the popularity of arbitration
over normal judicial remedies, as a president of the American
Arbitration Association (AAA) points out:
Business firms prefer to have their disagreements decided by people who are experts.
Arbitrators, unlike judges, can be chosen
for their business experience. AAA panels
include engineers, business consultants, and
many other specialized experts, as well as
attorneys.
The simplicity of arbitration is also an
inducement. No company wants to have its funds
tied up for long periods. The arbitration
process can move promptly, which is especially
important in disputes between builders and
contractors over performance payments or
between business partners who cannot agree
about the division of assets.
Arbitration takes place in a private,
informal atmosphere, one where business
people feel comfortable. And there is a less
chance that trade secrets will be disclosed to
competitors or that a firm's reputation will
be placed in jeopardy. In arbitration, confidentiality is honored.
Because the award is not subject to appeal,
the arbitration process results in a final and
binding decision. Many parties prefer that
finality, rather than facing the prospect of
extended appellate l i t i g a t i o n .
Validity of an Arbitration Agreement
The U.A.A. provides that a written agreement to submit
any present or future controversy to arbitration "is valid,
enforceable and irrevocable, save upon such grounds as exist
8
fifll ?.9
at law or in equity for the revocation of any contract."
16
In adopting the U.A.A., state legislatures have tempered the
enthusiasm of this provision.
For example, Texas and South
Carolina prohibit arbitration of worker's compensation claims.
17
Three states (Missouri, South Carolina and Texas) require
18
prominent notice of an arbitration clause's binding effect.
Several states forbid arbitration agreements in insurance contracts, and many jurisdictions restrict arbitration agreements
between employers and employees.
In addition to these statutory idiosyncracies, state
courts have employed a variety of policies and preferences in
their interpretations of the U.A.A.
A survey of recent deci-
sions suggests five considerations affecting the validity of
an arbitration agreement: (1) the statute may be narrowly
construed to avoid statutory exceptions; (2) the terms of the
contract and the conditions surrounding its execution may
dictate whether or not a provision is enforceable; (3) one
party may be a member of a class that is not included in the
statute or which requires special rules; (4) the state may
have other public policies outside of the arbitration statute
which restrict the ability to use an arbitration clause; and
(5) particular state provisions may be superseded in interstate
19
commerce by the Federal Arbitration Act.
Federal Arbitration Act
There is the possibility that an agreement unenforceable
under state law may be revived under the Federal Arbitration
9
(10130
Act.
20
The federal statute, in much the same language as the
U.A.A., states that an arbitration agreement in any contract
involving interstate commerce is "valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity
21
for the revocation of any contract.
The federal act usually must be applied in state courts
as well as federal courts when the dispute involves a transaction in interstate commerce or maritime matters regardless
of the forum in which it is brought.
When the agreement does
not involve interstate commerce or maritime transactions, its
enforceability depends on state arbitration law, regardless
22
of the forum.
The phrase "involving interstate commerce" in
the context of the Federal Arbitration Act relates not only
to interstate shipments of goods but also to contracts with
substantial interstate elements.
Some courts have required
several interstate elements before the federal act applies.
Other
courts
look
to whether
there
23 were substantial interstate
elements
in the
contract
itself.
24
In Merrill Lynch Pierce Fenner and Smith, Inc. v. Melamed,
the Florida District Court of Appeals held that it was bound
to apply the Federal Arbitration Act despite the invalidity of
the agreement under Florida's version of the U.A.A.
Melamed
arose out of a cash management contract between the plaintiff
and Merrill Lynch.
The contract required the parties to submit
all disputes to arbitration and also incorporated New York law.
The plaintiff sued, and Merrill Lynch responded by moving to
10
0
I'
Pl 1l
v
*» f
compel arbitration pursuant to the federal statute.
The trial
court denied the motion relying on a non-uniform Florida provision that withholds enforcement from agreements that incor25
porate the law of foreign states.
The appellate court reversed.
The agreement involved interstate commerce, said the court,
and so the federal act applied since it "is a national
substan26
tive law that supplants inconsistent state law."
The court
also noted that unfair forum shopping would result if state
courts left enforcement of the Federal Arbitration Act solely
to federal c o u r t s . ^
The significance of Melamed is increased by consideration
of other contracts which might fall under the broad rubric of
interstate commerce.
Under the supercession doctrine, arbi-
tration may be compelled despite a prohibitive state statute.
It is apparent that the effect of the U.A.A. is to enhance the
presumptive validity of arbitration agreements.
The numerous
exceptions to this basic policy, however, are still taking shape
today. 28
Constitutionality of the U.A.A.
Various provisions of the U.A.A. have withstood constitutional challenges in several jurisdictions.
These challenges
have raised several issues, none of which has been successful.
The party challenging the constitutionality of any section of
the U.A.A. has the burden of proving the constitutional violation,
and this burden of proof has proved difficult to satisfy.
11
00*32
If
the statute can be construed in a manner consistent with the
Constitution, the court will uphold it.
The U.A.A. contains the
usual provision that protests the act in its entirety from being
held unconstitutional:
If any provision of this act or the application
thereof to any person or circumstance is held
invalid, the invalidity shall not affect other
provisions or applications of the act which
can be given effect without the invalid provision or application, and to this end the
provisions of this act are s e v e r a b l e .
Section 1 of the U.A.A. governs the validity of an arbitration agreement.
By signing such an agreement, a party
relinquishes his constitutional right to a trial before a court
of law.
30
Michigan courts have unanimously agreed that this
aspect of the U.A.A., as embodied in the state's Medical Mal31
practice Arbitration Act,
is not unconstitutional.
Although
a party may waive his right to a trial by entering into an
arbitration agreement, Michigan32has held that such a waiver
must be knowing and voluntary.
To date, no constitutional attack on the U.A.A. has been
successful.
Constitutional challenges to some state provisions
which, though modeled after the U.A.A., are more restrictive
have been similarly unsuccessful.
State arbitration statutes
that omit specific provisions of the U.A.A. have been called
33
into question but have also been upheld as constitutional.
Mandatory Arbitration
Mandatory arbitration is arbitration that takes place
pursuant to an agreement entered into at the time the parties
12
d«riaa
formalize their legal relationship and prior to the existence
of a dispute.
The arbitration clause is usually either an
unlimited provision which requires the arbitration of any dispute under the contract, or a limited provision, which specifies the type of dispute to be arbitrated.
The clause fre-
quently provides for the arbitration to be administered by the
American Arbitration Association (A.A.A.), and conducted pur34
suant to the applicable rules of the A.A.A.
Many of the provisions of the U.A.A. and most of the court
decisions on arbitration relate to mandatory arbitration issues.
These issues include the existence of an agreement to arbitrate,
the scope of the clause or the enforcement or waiver of the
clause.
Voluntary Arbitration
The critical difference between mandatory arbitration
and voluntary arbitration is that in voluntary arbitration the
agreement to arbitrate relates only to a specific, existing
dispute.
This difference distinguishes it in several ways from
mandatory arbitration.
First, since the decision to arbitrate
relates to a given set of facts, there is a specific analytical
process that can be undertaken in determining its advisability.
Second, the terms of the arbitration agreement itself can be
negotiated between the parties based on the nature of the
dispute.
In mandatory arbitration, the parties agree to utilize
a given set of rules and procedures for the arbitration of a
future dispute.
When the dispute arises, it is assumed that
13
the parties are bound by those rules and procedures previously
agreed upon.
In voluntary arbitration, the procedures of the
arbitration can be negotiated and set forth in an agreement
and it would appear that if the provisions are not directly
inconsistent with the U.A.A., they would be enforceable in the
courts.
If conceived of and used in this way, voluntary arbi-
tration can be an extremely flexible tool for the resolution of
35
a much broader range of disputes than mandatory arbitration.
The usual practice in voluntary arbitration is for the
parties to negotiate and draft a formal submission agreement,
which would normally contain the following provisions:
an
agreement to arbitrate and be bound under the provisions of the
U.A.A., the adoption of the A.A.A. rules, unless specified
otherwise; a precise statement of the issue or issues to be
decided; the making of a stenographic or other record, if any;
allocation of costs; any specifics regarding evidence, procedure or discovery; either the appointment of an arbitrator or
arbitrators or a method of
3 6selecting one or more; and the time
and place of arbitration.
A decision to agree to arbitrate is basically a decision
to have the case heard and decided on its merits, as opposed to
procedural matters.
The parties agree to abandon the formal
judicial process and all the procedural defenses relating to
jurisdiction, notice, timeliness, adequacy of the pleadings,
motions for judgment and the like.
This is an important consi-
deration for the attorney and his client—are they willing to
14
have matters decided on the basis of all the evidence material
to the controversy?
The answer will depend upon the attorney's
analysis of the strength of the procedural defenses, yet the
opposing side will also be abandoning their procedural defenses.
Voluntary arbitration may be particularly useful in those
situations where the parties genuinely want a resolution of the
dispute but are so emotionally locked into their positions that
they are unable to agree to a settlement.
Arbitration in
this instance enables the parties to have a fast and fair
decision and an end to it all.
Court-Annexed Arbitration
Arbitration, as an alternative to litigation, is voluntary
in its most common form.
Its use depends on the consent of the
parties and, once agreed to, is binding.
In order to cope with
an ever-increasing flood of litigation, some courts have used
arbitration in a different f o r m — a court-annexed procedure—
to resolve civil litigation already commenced.
Court-annexed
arbitration is unlike traditional arbitration in several ways.
First, it is mandatory rather than voluntary.
Second, the
arbitrators are typically assigned by a third party rather than
chosen by the parties and thirdly; the award is not binding.
Typically, the procedure is imposed upon litigants by statute
and by rule.
Moreover, court-annexed arbitration is a method
of dealing with civil litigation subsequent to the filing of
the case while traditional arbitration occurs prior to the
15
(10130
institution of a lawsuit.
37
Court-annexed arbitration is an alternative method of
dispute resolution.
ever before.
It is utilized more extensively today than
It commands widespread and increasing interest,
not only because it serves the litigants well, but also because
it offers overburdened courts a measure of relief from seriously
backlogged dockets.
Pennsylvania's Court-Annexed Arbitration
Pennsylvania first instituted court-annexed arbitration in
1951.
The enabling act provided that the county courts of common
pleas could, at their option, provide for mandatory arbitration
in cases involving $1,000 or less.
Shortly thereafter, manda-
tory arbitration was adopted for use in approximately fifty
counties in Pennsylvania.
Currently, court-mandated arbitration
is being used in nine states, the District of Columbia, and
38
two United States district courts.
Use of this procedure
has increased dramatically during the past decade.
Speaking of the Pennsylvania program, Chief Justice Burger
recently observed the impact on court backlog:
"In Philadelphia
in the first two years after the jurisdictional level was
increased to $10,000, the entire civil calendar backlog was
reduced from 48 months to 21 months.
In 1974 more than 12,000
of approximately 16,000 civil cases were resolved through
39
arbitration.
At present, the Philadelphia bar considers
the state court program highly effective.
"Without arbitration
in Philadelphia," the chancellor of the Philadelphia Bar
16
(toi a ?
Association wrote in 1981, "we would have chaos."
40
The court-annexed arbitration hearing is generally conducted as an informal trial, in which a panel of three arbitrators—lawyers who have agreed to serve—hear evidence and
arguments and render a decision.
A dissatisfied party may
reject the decision by demanding a former trial (or trial de
novo).
If so appealed, the case is treated as though there
had been no arbitration.
Where the claim is one triable by
41
a jury, the right to jury trial remains.
Where court-annexed arbitration is voluntarily chosen, the
decision has an obligatory character without any de novo trial
right.
The virtues of this procedure include accelerated case
disposition and reduced litigation costs.
By significantly
alleviating the need for support personnel, arbitration
decreases
42
the fiscal outlays required by the court system.
Court-annexed arbitration may not be the optimal approach
for every jurisdiction, but it has been a dramatic success
in some places, and has produced significant, albeit modest,
results in others.
Given the enormity of the twin problems of
delay and expense in court litigation, it is reasonable to suggest the court-annexed arbitration be given the chance to reach
its full potential as an alternative mechanism for dispute
resolut ion.
New York's Arbitration
The Alternative Method of Dispute Resolution by Arbitration
(formerly called "Compulsory Arbitration") is authorized by New
16
001
York Civil Practice Law.
It has been established in many courts
and counties, although not everywhere in the State, by administrative order of the Chief Administrator of the Courts.
Unlike
the small claims procedure, it may be established not only in
lower courts but also in the supreme court and county court.
In the courts and counties where arbitration is established, it is
mandatory for all money actions not exceeding $6,000, exclusive
of costs and interest, unless the action is commenced as a
small claim and not subsequently transferred to a regular part
43
of court.
The Chief Administrator's orders have directed that actions
demanding more than $2,000, exclusive of costs and interest,
will be heard by three arbitrators unless the parties stipulate
to be heard by a single arbitrator.
The chairman of a panel
or where appropriate, the single arbitrator, must be a member
of the bar for at least five years; the second and third
panelists need only be members of the bar.
Arbitrators
under
44
this program, although volunteers, are compensated.
The underlying philosophy and goals of arbitration have
been described as follows:
The foundation for a successful program of
compulsory arbitration is enthusiastic reception by the bar, which necessarily involves
familiarity with the program by lawyers. In
the final analysis, the interest of the bar is
more vital to the success of arbitration than
the enthusiasm of judges and administrators,
because arbitration essentially is a program
operated by the bar, related to, but outside
the court structure. While the prime beneficiaries are lawyers and the courts. Litigants
are enabled to obtain legal remedies swiftly,
17
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through determination by panels of lawyers,
without giving up substantial rights, in
matters which are too large to be handled as
small claims, but too small to justify the
expense and delay of full blown court proceedings. Lawyers can dispose of smaller cases with
dispatch. Courts are relieved of the necessity to try matters easily disposed of by
arbitrators and judges are left free to
preside over more complex cases. The compulsory arbitration experience, which predates the
New York experience, indicates that once the
bar becomes aware of the program, it takes the
initiative in seeking its insulation, and then
works hard to ensure its successful o p e r a t i o n .
The continued improvement of existing alternative methods of
dispute resolution in civil, criminal and family law, together
with the search for new methods, remains an important part of
the effort to end court congestion and delay, and to provide
for the swift and inexpensive resolution of disputes.
A national
movement toward alternative methods of dispute resolution
features divorce mediation as one of its strongest components.
MEDIATION AS AN ALTERNATIVE TO LITIGATION IN DIVORCE
Many attorneys, judges, therapists, ministers and clients
believe that adversary divorce makes little sense as the only
alternative in an era of no-fault divorce, conciliation courts,
and joint custody.
In order to best serve the needs of one's client and of
the legal system as a whole, it is necessary to draw upon
knowledge evolved in other fields such as economics, history,
sociology and psychology.
Divorce, for example, is a phenomenon
with not only legal but also broad sociological and psychological implications which must be considered in any
18
(m
40
attempt at problem solving and reflected in the solution.
People in this country have, over the past few decades,
begun to make increasing demands of the marital relationship.
Marriage is no longer as necessary for the economic or social
security of the partners as it once was.
Thus spouses now
look to the marital relationship itself for satisfaction of
individual needs and desires more than ever before and this
cannot help but produce more divorce.
In 1981, for every two marriages in the United States,
46
there was one divorce.
1959.
This rate represents a tripling since
The children of the United States are also being affected
in significant numbers by this trend.
Over 60 percent of all
divorcing couples have children, with one million
children
47
involved in divorce proceedings each year.
Half the children
of divorce have not seen their father in at least a year.
Such
a trend has important social and psychological implications.
Divorce can also leave deep scars on children impairing
their learning ability, their understanding of human relationships, and their beliefs in their ability to love.
The imme-
diate response of most children to the news of parental separation and divorce is distress and anxiety.
feel intense anger.
A child may also
With parents blaming one another, it is
natural for the child to begin thinking in terms of who is at
fault.
Yet, such hostile feelings in turn arouse strong guilt
in the typical child.
It is thus very important to the child
that the parent who has left the home continue to play an
19
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active role in his life; however, hostility between his parents
may make this difficult.
Continued parental conflict is the
single most damaging aspect of divorce for children.
It places
them in the position of divided loyalties and can siphon off
48
energy needed to deal with the developmental tasks they face.
Divorcing parents may also experience a myriad of emotions
including guilt, anxiety, and a pervasive sense of failure.
Terminating a marriage can be a frightening experience even
with both parties in agreement.
Spouses often experience a
loss of self-trust and a desperate need for reassurance.
Yet
people lose the ability to support and communicate with one
another in a rational adult manner during this period.
Often
conflict becomes the means by which the emotional connection
49
between two people unable or afraid to let go can be maintained.
Thus, the divorcing couple may actually be in agreement about
important issues but fail to recognize this due to anger and
poor communication.
The feelings engendered by divorce must
be faced and resolved or they will eventually become overwhelming,
incapacitating one's ability to function as a mentally healthy
adult and parent.
"The burden to themselves and to the community
and its agencies of embittered distraught people can be substantial, in terms of mental health, demands upon doctors,
impairment of employability, and many personal debilitating
matters.
The concept of mediation recognizes that feelings are as
important as the legal aspect of divorce and that there are
20
often psychological as well as legal barriers which must be
understood and overcome before compromise and agreement become
possible.
Representing a "marriage" between the concepts of
psychotherapy and labor mediation, divorce mediation stresses
honesty, informality, open and direct communication, expression,
attention to the underlying causes of disputes, reinforcement
of positive bonds, and avoidance of blame.
Its purpose is not
only to help spouses reach an agreement which recognizes the
needs and rights of all family members but also to lay the
foundation for the healthy restructuring of post-divorce family
, . . 51
life.
What is Divorce Mediation?
Divorce mediation is a non-therapeutic process by which
the parties together, with the assistance of a neutral resource
person or persons, attempt to systematically isolate points of
agreement and disagreement, explore alternatives and consider
compromises
for the purpose of reaching a consensual settle-
ment of issues relating to their divorce or separation.
Mediation is a process of conflict resolution and management
that gives back to the parties the responsibility for making
their own decisions about their own lives.
It is usually
conducted in private without the presence of the parties'
attorneys.
It has identifiable stages and divisible tasks, but
no universali pattern. 52
In order to better distinguish mediation from other
alternative dispute resolutions, it might be necessary to
21
describe what it is not.
therapeutic process.
It is not, as mentioned above, a
Participation in mediation may or may
not have a therapeutic effect on the parties, but it is not
designed as a traditional therapeutic process.
It is not
focused on insight to personal conflict or in changing personality patterns.
It is much more an interactive process than
an interpsychic one.
oriented.
Mediation is task-directed and goal-
It looks at resolution and results between the par-
ties rather than the internalized causes of conflict behavior.
It discourages dependence on the professional who is providing
the services rather than promoting it.
Though some approaches
to therapy can make similar claims, therapy is any mode of
53
treatment, which mediation is not.
Mediation is not arbitration.
In arbitration a neutral
third party is empowered to decide the issues.
In mediation
the third party facilitates negotiations between the parties
but is not empowered to
54make decisions or even recommendations
concerning the issues.
Arbitration may follow mediation,
either as a separate proceeding or as a part of the same
"med-arb" process.^
Mediation is not the same as traditional negotiation of
divorce disputes.
Negotiation is generally a "sounding out"
process to aid dispute resolutions but is not accomplished
through any established framework and may be pursued through
representatives, most often attorneys.
Negotiation does not
usually utilize a neutral resource person and is premised on
22
ff 1 1 1 4 4
an adversary model.
Private negotiation may precede mediation.
It may also follow unsuccessful mediation or even sometimes
go on simultaneously.^
Divorce mediation is different from the Circuit Court
Mediation model.
There is no panel of mediators.
There are
no formal presentations made to the mediator by attorneys and
the mediator does not issue a report to either the parties or
57
the court if no agreement is reached.
Mediation is not conciliation.
used interchangeably.
The two terms are often
The two can be distinguished by looking
at their historical development and application to the field
of family law.
California first offered court-connected
conciliation services in 1939.
The initial focus of these
services was on providing marriage counseling aimed at effecting
a reconciliation of spouses.
With the adoption of no-fault
divorce and the increase in the divorce rate, the focus of
conciliation has shifted from marriage counseling and evaluation
services for purposes of assisting the domestic relations
judges in making child custody and visitation orders.
Indeed,
in California where mandatory custody mediation is usually
performed by conciliation personnel, the distinction between
conciliation and mediation has become somewhat obfuscated.
Though private mediation may encompass financial and property
issues, court-connected mediation rarely attempts to directly
resolve money or property distribution matters.
Conciliation
is by practice and tradition limited to personal issues of
custody and parental relationships among family members.
23
00145
That is not to say that conciliation staffs could not provide
mediation services leading to a written resolution of all
..
.
58
divorce issues.
Why Mediation?
Divorce mediation is not meant to supplant the adversarial
system.
Is is the existence of the adversarial system, with
its procedural safeguards and statutory and common law standards,
whcih often impels parties to settle in mediation, within the
59
framework of the legal precedents for their dispute.
Mediation is not for everyone.
For many couples the
traditional adversary system is clearly necessary and desirable.
For example, where one or both parties cannot negotiate for
themselves, mediation is not advisable.
Where the power
imbalance is too great and where the issues are too complex,
the adversary system is preferred.
And where the parties are
simply unable or unwilling to come to an agreement, mediation
should not be utilized.
Nevertheless, judges, lawyers, therapists and clients
increasingly turn to mediation.
Divorce attorneys often find
divorce litigation emotionally wearing, frustrating, and too
often non-remunerative, difficult on them, and difficult on
their clients and clients' children.
They find that divorce
litigation has become a battle of experts, too costly for
most clients and unresponsive to their needs.
Many want to
get away from the atmosphere of blame which pervades the
adversarial system.^
24
fWim
Clients seek a system in which they retain more control
over the settlement, reduce the level of hostility, and save
time and money.
Therapists look for a system which can assist
families to restructure themselves after the divorce, and which
will help them learn problem-solving and communication skills.
They seek a system which encourages cooperation and has an
overriding concern for the effect of the divorce process on
children.
Finally, all seek a way to avoid the win-lose aspects of
the adversarial divorce, and instead provide an environment
of mutually supportive problem solving.
61
The Process of Divorce Mediation
The primary goal of divorce mediation is an agreement
signed by both parties, covering all the issues the parties
want to deal with.
Issues agreed upon include property,
custody, child support, visitation and/or alimony.
Secondarily,
however, the mediation process seeks to assist the couple to
find new methods of conflict resolution and communication that
will help them resolve their own future disputes in more posi62
tive ways.
In that vein, mediation attempts to find ways to get the
couple to work cooperatively to find solutions which allow
both parties to maximize their gains and minimize their losses.
Where possible, mediation strives to permit both parties to
win in the resolution of the issues.
25
(11)1
The mediator will usually see the couple face-to-face.
If this does not work for a particular couple or a particular
session, the mediator may separate them and shuttle back and
forth.
The mediator may try to see each party alone at least
once, in order to get a clearer idea of each person's goals
and needs, and to gauge where each person is in the emotional
63
process of divorce.
The following is an outline of a typical mediation in
a private mediation setting:
1.
The couple meets with the mediator, who explains
the mediation process and its use of outside experts.
It
is stressed that the mediation process is one of cooperation,
mutual problem-solving, and respect for each other's problems
and needs.
The parties explain their situation, what they
hope to achieve in mediation and any problems or issues they
foresee.
The mediator then sets up a tentative timetable.
If the
parties and the mediator agree that mediation is for them, the
parties will sign a mediation agreement.
This agreement
normally sets out the mediation process and ground rules and
often includes an agreement that the process is confidential,
that the mediator will not be called as a witness by either
party and that there will be full disclosure of assets by
both parties.
2.
The mediator meets with each party separately to make
sure that each party will be able to carry on negotiations, and
26
001
to find out more about their individual goals and needs.
The
mediator may also assist them in setting personal directions
in which they may need to go, such as career counseling, personal therapy, or obtaining personal counsel.
The mediator
does not give legal advice in these sessions.
3.
For the third session the parties are asked to bring
financial information and to fill out financial data and budget
forms.
In order to assess the property in question and the
need for support or alimony.
Finances are usually important even where the only issue
between the parties is custody.
For example, one spouse may
not want joint custody because he or she cannot make ends meet
without child support, or one spouse may be willing to give
the other custody for a 50/50 split of the assets.
When all the information is complete, the couple begins
to sort out issues and reach agreements on them.
Often the
mediator will try to deal first with a relatively easy issue,
in order to help the couple feel confident about their ability
to negotiate; then the mediator builds on that success for the
more difficult issues.
4.
There are usually two to four more sessions in which
the couple works through the issues.
Experts are brought in
where necessary, such as a pension valuation specialist, a
tax specialist, or a child psychiatrist.
Some mediators bring
in children routinely; others rarely do so.
5.
When an agreement is reached the mediator writes it
27
(10149
up, and gives it to the parties for examination by them and their
attorneys.
The mediator then redrafts it with changes, and the
couple signs.
They then take the agreement to the attorney
who will file their divorce.
6.
The couple can return to negotiate portions of the
agreement as necessary, either before or after the divorce
64
judgment is taken.
The last steps of mediation tend to be unique to each
mediation organization.
In some an attorney for the organiza-
tion will advise the parties and/or draft the agreement and
file the divorce for the parties.
In other organizations
the attorneys for the parties (or for one of the parties) will
draft the agreement and file the divorce.
Although some clients
wish to file their own divorce, ethical questions and general
prudence lead many mediation organizations to strongly encourage
clients to consult their own attorneys during mediation and
65
after the agreement is signed.
Fairness of Divorce Mediation
Mediation, unlike litigation, may appropriately recognize
the collision of legal norms with "person-oriented norms."
These personal norms or standards, though not legally valid
in court, may be important to the parties in reaching a fair
settlement within the context of the emotional issues and
characteristics involved in divorce disputes.
The accommo-
dation of these colliding norms may produce an agreement no
28
less "principled" for the parties than a litigated result
decided only on accepted legal norms or principles.
For example,
a personal norm that considers fault relevant to the financial
outcome may be accommodated in mediation, even though this
legal principle is no longer relevant in the majority of courts
in many states.
If fault is relevant in accommodating the
parties' personal principles, knowing that fault would not be
considered in court does not make the resulting settlement any
less "principled."
The accommodation of these nonlegal pron-
ciples is one of the advantages of private ordering facilitated
by mediation that may make the settlement more acceptable and
lasting for the divorcing parties.
The contrast of mediation
with litigation, in considering a larger universe of norms and
principles and in being more open-ended than court proceedings
is only a distinction.
QQ
Protection of Children
The State under the well-developed doctrine of parens
patriae has a responsibility for the welfare of children only
when parents cannot agree or cannot adequately provide for them.
Divorce mediation begins with the premise that parents love
their children and are best able to decide how, within their
67
resources, the children can best be cared for.
Court review implies court power to change parental decisions and impose the decision of a judge.
When both parents
love their children and are willing to utilize a process of
mediation to agree on how to provide for them after divorce,
29
001 ni
it does appear presumptuous and insulting to impose a third
party (judge or child development expert) to determine whether
the parents' custody, support and care agreement is proper for
their own children.
A mediated agreement of the parents about
their children's custody, support and care is much more likely
to match the parents' capabilities and desires with the child's
needs than is a judicial decision.
Whether the parents' deci-
sion is the result of reasoned analysis or is influenced by
depression, guilt, spite or selfishness, it is preferable to
an imposed decision that is more likely to impede cooperation
and stability for the children.
A professionally directed
process with the very goal of cooperative assessment of needs
and abilities to reach a consensual and personalized parenting
plan for the children would appear far less likely to produce
error than an adversarial process that leaves one parent a
winner and the other a loser.
Property Division
Mediation should encompass the division of property and
conclude with a written settlement document.
Whether by a
counselor or an attorney, the property settlement should be
viewed as a vehicle for finishing and bringing closure to the
marriage relationship.
Property division could be considered
a ritual signifying the ending of a marriage. It is emotionally
symbolic as well as legally and factually important.
As each
detail is negotiated, there is a simultaneous and emotional
shifting regarding the approaching reality of divorce.
30
(Wins
69
The process by which the financial aspects of the marriage
are brought to a close can be as important as
document itself.
the settlement
With this in mind, the document's importance
is no more supreme than the cooperative process which produced
it.
If there is no court hearing, the parties' act of signing
the property settlement agreement can mark for them a ritualistic
ending to the marriage that might have otherwise been lacking
in the mediation process.^ 0
Ethical Considerations in Mediation
There has been some concern within the legal system
regarding whether attorneys can ethically practice divorce
mediation.
The concern seems mainly to focus on the area of
private practice; court sponsored mediation has seemed more
71
palatable.
In support of their positions, critics most often
point to the prohibitions of Canon 5 of the Lawyer's Code of
Professional Ethics, which prevents representation of conflicting or potentially differing interests.
Canon 5 states:
"A Lawyer Should Exercise Independent
Judgment on Behalf of Client."
reads:
Ethical Consideration 5-1
The professional judgment of a lawyer should be exer-
cised within the bounds of the law, solely for the benefit of 72
his client and free of compromising influences and loyalties.
There are exceptions to Canon 5. For example, dual
73
representation is permitted "in matters not involving litigation."
However, representation of both spouses has traditionally been
prohibited as inherently prejudicial.
31
Yet with the dawn of
no fault divorce, several bar associations have departed from
this position.
In Virginia a recent informal ethics opinion permits a
single attorney to represent both spouses in drafting the
74
agreement.
Also, a recent California case permitted dual
representation if the spouses truly have no conflict of interest
as long as there has been "full disclosure of all facts and
circumstances that are necessary to enable the parties to make
a fully informed choice regarding the subject matter of litigation, including the areas of potential conflict and the
possibility and desirability of seeking independent legal
, .
,,75
advice."
This position is consistent with Ethical Consideration
5-105(c),
76
which states:
A lawyer may represent multiple clients if
it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such
representation on the exercise of his independent professional judgment on behalf of
each.
Most bar associatons have concluded that "the private
attorney is not precluded by the Code of Professional Responsi78
bility for serving as a divorce mediator."
Support for
divorce mediation may be found in Ethical Consideration 5-20,
which states:
A lawyer is often asked to serve as an impartial
arbitrator or mediator in matters which involve
present or former clients. He may serve in
either capacity if he first discloses such
present or former relationships. After a
32
(10154
lawyer has undertaken to act as an impartial
arbitrator or mediator, he should not thereafter represent in the dispute any of the
parties involved.79
As the New York City Bar Association stated:
"The Code's
recognition that lawyers may serve as mediators . . ., as well
as ethical aspirations which recognize a lawyer's duty to
assist the public . . ., make it inconceivable that the Code
would deny the public the availability of non-adversary legal
80
assistance in the resolution of divorce disputes."
In order to combine legal expertise and expertise about
children and families into a mediation practice, many attorneys
have joined forces with counselors and therapists in mediation.
Since mediation requires the skills of both attorneys and
therapists, in addition to mediation skills, this teamwork seems
logical and advantageous.
However, it brings problems with
Canon 3 of the Code of Professional Responsibility.
Attorneys
need to be careful that they are not assisting non-lawyers in
the unauthorized practice of law; that
they are not practicing
in association with, or in partnership with, a non-lawyer; that
81
they are not splitting fees with a non-lawyer.
Attorneys should make sure that the non-lawyers they work
with are not giving legal advice.
The problems of practicing
in association with a non-lawyer can
82 be avoided if the lawyer
is mediating, not practicing law.
Research shows that clients who successfully mediate are
more satisfied with their divorce judgment, initiate fewer
post-judgment motions for modification and have a higher rate
33
ftfrt
of compliance with judgments than non-mediating clients.
In
addition, they have higher rates of joint custody and a higher
rate of visitation by the non-custodial parent.
83
CLOSURE
The legal system is slowly beginning to heed the nowfamous words of Abraham Lincoln:
"Discourage litigation.
Persuade your neighbors to compromise whenever you can.
Point out to them how the nominal winner is often the real
loser—in fees, expenses, and waste of time.
As a peacemaker,
84
the lawyer has a superior opportunity of being a good man."
Arbitration and mediation are only two alternative methods of
dispute resolution; conciliation is another method.
A subsequent paper will focus on a special type of conciliation—Christian Conciliation which provides a method for
the resolution of disputes based upon biblical mandate and
spiritual principles in which attorneys, pastors, psychologists,
teachers and other professionals,as well as lay leaders are
peacemakers (mediators and arbitrators), who are instrumental
in healing human conflicts.
34
W f i w
ENDNOTES
1.
Burger, Isn't There a Better Way?, 68 A.B.A. J 274-277
(1982).
2.
Magna Carta, cl. 40(1215) reprinted in J.C. Holt,
Magna Carta 327 (1969).
3.
Satires XVI (Dryden translations).
4.
Habakkuk 1:4.
5.
Burger, supra note 1, at 275.
6.
id.
7.
Id.
8.
W. Wilson, Constitutional Governments in the United States
17 (1908).
9.
Burger, supra note 1, at 275-76.
10.
Id. 276-277.
11.
Project, Recent Developments:
The Uniform Arbitration Act,
48 Mo. L. Rev. 137, 159 (1983). [hereinafter cited as Act].
12.
Unif. Arbitration Act jsj§ 1-25 (1955), 7 U.L.A. (1978).
[Hereinafter cited as U.A.A.j
13.
Maclean, Voluntary Arbitration as an Alternative to
Litigation, 10 Colo. Law. 1300, 1302 (1981).
14.
Jurisdictions that have adopted the U.A.A. include Alaska,
Arizona, Arkansas, Colorado, Delaware, District of Columbia,
Florida, Idaho, Illinois, Indiana, Kansas, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Missouri, Nevada, New
Mexico, North Carolina, Oklahoma, Pennsylvania, South
Carolina, South Dakota, Texas, and Wyoming.
15
R. Coulson, Business Arbitration—What You Need to Know
7 (1980).
16
17
U.A.A. g 1 (1955).
S.C. Code Ann. § 15-48-10(b)(2) (Law Co-op. Cum. Supp.
1982); Tex. Rev. Civ. Stat. Ann, art. 224-1 (Vernon Cum.
Supp. 1982-1983).
19
Act, supra note 11, at 146-47.
20
9
21
Id. § 2.
22
Cook v. Kuljian Corp., 201 F. Supp. 531, 535 (E.D. Pa. 1962).
23
See, e.g., Metro Indus. Painting Corp. v. Terminal Construc-
U-S.C. § 1-14 (1976).
tion Co., 287 F. 2d 382, 384 (2d Cir. 1961).
24
405 So. 2d 790 (Fla. Dist. Ct. App. 1981).
25
405 So. 2d at 791.
26
405 So. 2d at 793.
27
28
Act, supra note 11, at 154.
29
U.A.A. § 22 (1955).
30
Rome v. Sinai Hospital, 112 Mich. App. 387, 390, 316 N.W.
2d 428, 429 (1982).
31.
Mich Corop. Laws Ann. §§ 600.5040-.5065 (West Cum. Supp.
1982-1983).
32.
Morris v. Metriyakool, 107 Mich. App. 110, 114, 309 N.W.
2d 910, 911 (1981).
33.
Act, supra note 11, at 213.
34. Maclean, supra note 13, at 1302-03.
35.
Id.
36.
Id.
37.
Levin, Court-Annexed Arbitration, 16 U. Mich. J.L. Ref.
537-548 (1983).
38.
See generally Connolly and Smith, Description of Major
Characteristics of the Rules for Selected Court-Annexed
Mediation/Arbitration Programs, ABA Comm. to Reduce Court
Costs and Delay (1982).
39.
Burger, supra note 1, at 277.
40.
Levin, supra note 37, at 540.
41.
Id. at 538.
42.
Cooke, The Highways and Byways of Dispute Resolution, 45
Ky. Bench and Bar 6, 49 (Oct. 1981).
43.
N.Y. Admin. Code tit. 22A, g 28.2(b) (1982).
44.
Single arbitrators are paid $45 per case, as are chairpersons of
three-arbitrator panels.
The two non-chairperson
panelists in a three-arbitrator panel are paid $35 per case.
N.Y. Admin. Code tit. 22A 1 28.10 (1982).
ClOi r>9
45.
Evans and Bulman, Alternative Dispute Resolution Method
Holds Out Promise of Great Utility, N.Y.L.J• 25 (Jan. 1980).
46.
National Center for Health Statistics, Annual Summary of
Births, Deaths, Marriages, and Divorces:
United States, 1981.
47.
Heymann, Mediation Helps Couples, 41 Humanist 21 (1981).
48.
Gold, Mediation In The Dissolution of Marriage, 36 Arb. J.
9, 11 (1981).
49.
Id.
50.
A Family Conciliation Service, 126 Solic. J. 372 (1982).
51.
Gold, supra note 48, at 11.
52.
H. Jay Folberg, Divorce Mediation - A Workable Alternative,
in Alternative Means of Family Dispute Resolution, American
Bar Association 11, 14 (1982).
~~
53.
Id. at 14.
54.
Zumeta, Mediation as an Alternative to Litigation in Divorce,
62 Mich. B.J. 434 (1983).
55.
Folberg, supra note 52, at 14.
56.
Id. at 15.
57.
Zumeta, supra note 54, at 434.
58.
Folberg, supra note 52, at 15.
59
Id.
60.
Zumeta, supra note 54, at 435.
61.
Id.
62.
Id.
63.
Id.
64.
^d. at 436-37 see also Note, Divorce Mediation:
A New
Solution to Old Problems, 16 Akron L. Rev. 664, 670-71
(1983) (a four-phase mediation process is outlined).
65.
id.
66.
Folberg, supra note 52, at 30.
67.
Id. at 30-31.
68.
Id. at 31-32.
69.
Id. at 34-35.
70.
Id.
71.
Court-supervised or court-referred mediation has been
initiated in several states. "See, e.g., Family Conciliation
Union, Ft. Lauderdale, Fla., Probate and Family Court
(Norfolk and Middlesex County), Massachusetts; Domestic
Relations Division, St. Paul, Minnesota . . . "
Silberman,
Professional Responsibility Problems of Divorce Mediation,
16 Fam. L. Q. 107, 109 (1982).
72.
Model Code of Professional Responsibility Canon 5 (1980).
[hereinafter cited as Code].
73.
Id. E.C. 5-15.
74.
Va. St. B.A. Comm. on Legal Ethics, Informal Op. 296 (1977).
75.
Klemm v. Superior Court of Fresno County, 75 Cal. App.
3d 893, 901, 142 Cal. Rptr. 509, 514 (1977).
(f g i k i
76.
Code, supra note 72, at EC 5-105(c).
77.
Id.
78.
Fiske, An Enthralling Introduction to Divorce Mediation,
25 B.B.J. 15, 16 (1981).
79.
Code, supra note 72, at EC 5-20.
80.
Fiske, supra note 78, at 17.
81.
Zumeta, supra note 54, at 439.
82.
Id.
83.
Id. at 440.
84.
Note, supra note 64, at 679.
00182