By Henry S. Gornbein

In my practice, I have found that divorces rarely go to trial. Too often, this is because judges do not want to hear divorces; they are uncomfortable listening to people's "dirty linen." Many judges also consider family law to be a stepchild of the legal system, and therefore not worthy of much court time. In my view, most divorces should not be tried for several reasons. Typically, trials are frequently interrupted by other court matters, making it impossible to have a steady flow of testimony from start to finish. Furthermore, judges often are not familiar with the facts of the case, and may not have the time or interest to consider the specific needs of the parties, such as tax ramifications. This can result in the judge "cutting the baby in half," leaving everyone unhappy. Experience has taught me that settled cases have more favorable outcomes.

In Michigan, mediation is becoming a very popular means of achieving settlement. Mediation essentially involves two parties consulting with a trained mediator to try to work out their differences. The mediator may or may not be an attorney. The mediation structure utilized in many areas of Michigan, in my view, is workable anywhere. Prior to selecting a mediator, who in this model is an attorney, legal representation by the two parties has been retained, and discovery has been completed. All parties know what assets and liabilities there are, and what the marital estate consists of. When the two attorneys cannot resolve the case themselves, they select a mediator or the court will appoint one. The mediator's goal is to assist the parties in achieving a result that makes sense. Typically, a mediator is an attorney who specializes in family law. Ideally, a mediator is adept at managing interpersonal conflict that usually accompanies the mediation process.

When I mediate, I have each party prepare a mediation summary in advance. Thus, on the appointed date and time for mediation, I will have reviewed the summary. A general history of the marriage should be provided along with specific information such as names, ages, health of the parties, education, employment and income levels, along with a statement of assets and liabilities. Each summary will then state what caused the breakdown of the marriage, and what each party is seeking as a settlement. Issues involved can include spousal support (alimony) and property division. In some instances, with the parties' consent, mediation can also address visitation and custodial issues.

I would normally set a mediation session for the afternoon beginning at one or two p.m. This allows several hours to work toward resolving the case. It has been my observation that, as people get tired, they become more amenable to settlement suggestions. I can expect that, by the end of the day, people are more willing to consider what was unacceptable to them early in the day. These sessions typically last anywhere from two to four hours, and are usually very productive.

The mediation session begins with the spouses coming into the conference room with their attorneys. With all parties present, I first speak generally about my philosophy of mediation, namely, that solutions should be tailor-made to the facts, and that creativity is often necessary to arrive at these solutions. Next, I discuss the specific summaries that have been submitted. In this phase, I note the discrepancies and try to obtain agreements on as many issues involving assets and liabilities as possible. With discrepancies still remaining, I then provide each party, along with his or her attorney, the opportunity to speak to the group. When necessary, I reinforce the idea that we are trying to resolve the situation, and I discourage name calling and personal attacks, pointing out that this is counterproductive in mediation. The next stage involves assigning each party and respective attorney to separate offices, having explained to them in advance that everything we discuss is confidential. I then go back and forth, practicing shuttle diplomacy "a la Henry Kissinger." This approach is explained in advance. I present settlement possibilities that may be my own ideas, their ideas, or a combination. The goal is to create a result that makes sense, taking into account all the factors of the marriage, the assets and liabilities. I point out that neither party will be completely satisfied with the result, and that some concessions are necessary in order to achieve a fair settlement. By also pointing out the advantages of mediation over trial, the spirit of cooperation is enhanced. For example, I explain that by being creative, we can tailor make a settlement that is less likely to be achieved through a trial. I also emphasize the importance of their input, pointing out that a result achieved through communication and mediation has more of a chance to work than one forced upon the parties involuntarily through trial.

In situations where little progress is being made despite my many suggestions, I may then speak privately with the two attorneys. We will discuss ideas and solutions which they relay back to their clients. I continue to shuttle back and forth between offices. In the event that verbal settlement is achieved, it is important at this point to create a binding agreement which cannot be changed later on. I may reduce the verbal agreement to writing or put it on tape with everyone agreeing. At times, I have even drafted an actual judgment of divorce and obtained the necessary signatures before the parties have left for the day.

In situations where we are getting close but no settlement is reached, I suggest a proposal to the separate parties that might work. If they seem agreeable, I suggest to them that I will go to the other side and test the waters with this proposal, not telling the second party that the first party is willing to accept it. If the second party accepts, then a settlement is reached.

In certain instances, no settlement is achieved, but progress is being made. Perhaps there is a disagreement over values and there is a need for more appraisals or other information before a settlement is possible. In this situation, I suggest that our first session be adjourned and a new date for a second session be set. I encourage the parties to think about the ideas that have been on the table, with the goal of fine tuning them or updating certain evaluations with additional information. In some situations, evaluations of the parties are very far apart, especially with regard to small closely held corporations, or other business entities. In this case, I will suggest that an independent accountant or other expert be appointed to render an opinion after looking at the books and records or reviewing the respective evaluations that have been presented as part of the mediation summary. An independent expert can often bring the parties together on a major issue that the parties have been unable to achieve on their own, and this resolution can provide the foundation for settlement.

In Michigan, in circumstances where a settlement is not achieved, the mediator will then write a report which is submitted to the attorneys but is not read by the judge. In many instances, the mediator's report is based upon how the mediator believes the case might end up after trial, applying the law and facts. This next step has often been effective in achieving a settlement short of trial.

After many years as a mediator, I have become a firm believer in the mediation process. While I am a realist when it comes to the likelihood that neither party leaves the table completely satisfied, I am also very much an optimist that mediation can build a strong foundation for the future. Armed with a firm belief in the mediation process, the legal and interpersonal skills to effectuate it, and the patience to see it through, a mediator can reshape conflict into a "win-win" situation.

Posted on Saturday, February 24, 2007 at 01:43PM by Registered CommenterSite Administrator in | Comments Off

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