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Make parting less painful: mediating a family dispute without adding to parents' and children's distress takes sensitivity and tact. Here are nine common obstacles and tips to help smooth the way.

Family law cases are fraught with psychological factors that often make them much more difficult to mediate than the average civil lawsuit. To successfully resolve a contentious family law dispute, the lawyers and mediator must identify these factors and take steps to counteract them.

The following are common obstacles and approaches you can use to overcome them.

The 'hard-earned money' syndrome

Many family law contests divide property accumulated through the labors of one party, and that party is often reluctant to part with the property in question. For example, a spouse who worked for years to build a family business will often be less willing to part with some or all of it than one who did not work in the business.

In a mediation, techniques to diminish the impact of one party's intractability on this issue include the following:

* If a party is psychologically or emotionally attached to an asset, suggest a settlement in which that party buys out the other party's interest in the asset.

* Suggest that the mediator point out the practical advantages of settling--that is, if the parties do not settle, more hard-earned money will be spent unnecessarily on attorney fees and other litigation expenses. (See the pie charts on page 45.) This approach is appropriate in almost all the situations described below. This message should come from the mediator.

The custody/visitation dispute

In most civil cases, only dollars are in dispute. But the expression "it's only money" does not apply to cases in which child custody or visitation is an issue. Custody and visitation disputes can be the most difficult to settle. Specific techniques for resolving them include the following:

* Suggest deferring discussion of the custody and visitation issues in hopes that, over time, the ill will between the parties will subside and they will be able to work out a schedule without a court order. If your client is willing to defer these issues, urge the mediator to inquire into whether the other side also is willing. If so, the parties can agree to a court order simply stating that the child will "spend a reasonable amount of time with each parent."

* When suggesting settlement terms, avoid using the word "custody" and phrases such as "sole custody" or "primary custody." A parent often will fight hard to prevent the other parent from obtaining "custody" of a child (or sometimes even "primary custody"), but may have no objection to an arrangement that assigns "time with the child"--even when the arrangement is equivalent to an award of sole custody to one parent with visitation rights to the other, or of primary custody to one parent with secondary custody to the other.

* Suggest that a custody and visitation dispute be addressed one issue at a time, starting with the least controversial topics.

For example, except in cases involving infants or allegations of child or substance abuse, parents will generally agree that the child can be with the mother on Mother's Day and the father on Father's Day. The mediator should select the least divisive issues, help the parties reach agreement on them, and then build on that momentum to settle increasingly controversial matters.

Separation anxiety

A case in which one party does not want a divorce can be one of the most difficult to mediate. That party often resists the negotiation process mightily, no matter how reasonable the other party's financial offers are.

If you represent the unwilling party in a state with "no-fault" divorce laws--where, as a practical matter, if one party wants a divorce, it is granted--the appropriate response is to patiently explain, along with the mediator, that the divorce is inevitable. Even in states where true grounds for divorce must be proved, the recalcitrant spouse should be led to understand that a settlement on the terms being proposed may be more favorable than an offer at a later stage of the case--and more favorable (and considerably less expensive) than the outcome at trial.

The naive party

Sometimes you may have a client who is extraordinarily naive, especially about financial matters or other concepts pertinent to the mediation. This person will generally be terrified and either trust no one or trust only you.

In such a case, inform the mediator of the situation at the outset. The two of you should agree to proceed unusually slowly and patiently, explaining concepts to the client as the mediation proceeds, summarizing the discussions often, taking frequent breaks to enable the party to process new information, and stressing the practicalities of settlement from time to time.

The dominator v. the doormat

Suppose (as happens surprisingly often) one party threatens the other with financial or emotional harm if the other refuses to settle. Such threats--which may come from either spouse--pose another difficult obstacle to settlement.

For example, if the wife has been threatened, she may perceive that if she does settle, she will appear to be a "doormat," and that her husband will conclude that all he needs to do in the future to get his way is to threaten her again.

This perception is particularly likely if she believes that she has been easily cowed--and the husband has been domineering--throughout their marriage. She may think, "For the first time, I'm going to stand up for myself."

Also, if the husband has in fact success fully bullied the wife throughout the marriage (or perceives that he has), he may be unreasonable in mediation, believing that he can force an unreasonable settlement on his wife.

If the wife's perception that she has always been a victim is incorrect, the lawyers and mediator can defuse the situation by suggesting that the settlement contain a few provisions that will let her feel she has stood up to the alleged threats, and yet will have no true adverse consequences for the husband. For example, the settlement might provide that the wife will be the sole signatory of a modest bank account maintained for a minor child, or that certain funds to be divided will be turned over to the wife's attorney to divide.

However, if the husband really is domineering, he is likely to object to any one-sided provision. Under such circumstances, if your client is the wife, a better approach may be to allow her to vent her feelings in the husband's presence--with you and the mediator present, so she feels sale. Hopefully, she will no longer feel that she is acting like a doormat, and (assuming the husband eventually cools down after the wife vents) this obstacle to settlement will have been overcome.

For that matter, allowing the wife to air her feelings may be useful even if her perception that she has always been bullied is incorrect. However, there is a risk that the unjustly accused husband will become angry and walk out.

The furious client

Divorcing parties are often angry over the breakup of their marriage. Sometimes, however--for example, when one spouse left the other to pursue another relationship--one of the parties is furious to the point of irrationality. That party often is inclined to reject any proposed resolution that does not inflict pain on the "offending" party--even if it means committing financial suicide by refusing a reasonable settlement offer.

If you're the "offending" spouse's lawyer, ask the mediator to patiently hear the other spouse out, to be sympathetic, and most important, to point out the practical consequences of his or her action. Sometimes the mediator can overcome this obstacle by helping the "injured" party understand that he or she will be better off financially with a fair settlement than with a judgment after a trial. Also, if children are involved, the party may become more practical after the mediator points out the impact of financial suicide on the children. It is important to urge the mediator to lead this discussion; the "injured" party is likely to be more receptive to suggestions from the mediator than from you.

If you're the furious spouse's lawyer, agreeing with the mediator on such points in the client's presence may help keep the mediation from bogging down because of your client's obsession.

Interference from friends

One of the most difficult problems you will confront in almost every family law case is the propensity of the client's relatives and friends to offer advice, even though they do not have a complete and accurate picture of the facts and lack the expertise to evaluate the facts they do know.

This problem creates two obstacles to settlement: The advice frequently leads the spouse to have unrealistic expectations for settlement, and the spouse may be unwilling to settle the case on reasonable terms for fear of losing face with the advising friend.

If this obstacle develops in your case, point out to your client that the friend does not have the necessary expertise to evaluate the case. Also inform the mediator of this obstacle, and ask him or her to reinforce what you have already pointed out to the client.

Often, the client can be persuaded that you and the mediator know what you are talking about if one or both of you offer to discuss the case with the advising friend. A telephone conversation among you, your client, the mediator, and the friend will almost always end with the friend backing down, allowing your client to accept a reasonable settlement proposal (albeit one not falling within the parameters of the friend's earlier advice) without losing face.

The inexperienced lawyer

Most knowledgeable lawyers dread a case with an inexperienced lawyer on the other side because they fear that the inexperienced lawyer will be unable to recognize a fair settlement. This situation is especially frustrating in cases involving specialized, complex areas of the law, such as family litigation. The inexperienced lawyer may believe that if the client's case is appealing, the client will win--failing to recognize legal principles unique to family law (such as the use of mandatory formulas for calculating support or certain property allocations) that may spell doom even to an appealing case.

Or the inexperienced lawyer may have a distorted impression of what will appeal to a family law judge--for example, believing (incorrectly) that the judge will punish the other party for leaving the marriage because that party belatedly discovered that he or she was homosexual.

If your client has made a reasonable settlement offer that is being rebuffed by an inexperienced opponent, ask the mediator to intervene. The mediator can explain to the lawyer, in the client's presence but in a way that won't embarrass the attorney, why the proposed settlement is a fair one.

Also, if you discover early in the case that the opposing party is represented by an inexperienced lawyer, consider giving more weight to impressive family law credentials when you are searching for a mediator. The more impressive the mediator's credentials, the more credible he or she will be to the inexperienced lawyer--and to that lawyer's client.

The overzealous lawyer

Particularly in family law, some clients want their lawyers to be overly aggressive. In addition, some lawyers assume that their clients want them to be overly aggressive in their representation, even when that is not so. A lawyer who believes this often "pumps up" the case to the mediator in the client's presence--overstating the case and ignoring the strong points of the opponent's case in order to impress the client. This can give the client an inaccurate impression of the case's strength, making him or her unwilling to agree to a reasonable settlement.

If this obstacle surfaces during the mediation, interrupt politely and urge the mediator to speak privately with the "offending" lawyer. The mediator should point out that the lawyer is inadvertently distorting the client's case, and that if the lawyer intends to continue presenting the case in this manner, the rest of his or her opening remarks should be made outside the client's presence.

The mediator also might tell the client, in the offending lawyer's presence, but outside the presence of the other party and his or her lawyer, that the mediator does not believe the case is as strong as the lawyer is suggesting in his or her presentation. In doing so, the mediator should make a point of exposing as many weaknesses as possible.

This approach will tend to deflate the pumped-up client and make a reasonable settlement appear more acceptable. (Although a mediator normally will be reluctant to take such a strong stand at the outset of a mediation, he or she might be persuaded that this problem poses so serious an obstacle that immediate and dramatic action is appropriate.)

If fear of losing your client tempts you to overstate the case, be of stout heart! Remember that if you are unable to achieve the results your presentation portrays as a "sure thing," your client may turn on you (for example, sue you for malpractice), and you will be worse off than if you had lost the client in the first place.

Instead of distorting your client's case to the point where any settlement short of capitulation by the other side seems inadequate to your client, explain to him or her that while you believe strongly in the case, mediation is not your client's opportunity to "win." Instead, the process is designed to reach a compromise that is satisfactory to both sides.

Also explain that an intemperate presentation may interfere with the mediation process by convincing the other party that the mediation is a waste of time because no objective evaluation by your client is possible. Therefore, you will state your client's position in a positive but noninflammatory manner.

These psychological factors can have an enormous impact on the ability to settle a family law dispute; be alert to their presence. If you perceive that one or more of them is threatening the resolution of your case, alert the mediator as soon as possible. By working with your client, the mediator, and your opponent, you can surmount the obstacle and clear the way to a settlement that will satisfy all the parties.

Arnold H. Gold, a retired state court judge, is a mediator with Alternative Resolution Services in Los Angeles.
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Author:Gold, Arnold H.
Date:Jun 1, 2003
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