Washington Post

A Calm Voice Between 'He Said' & 'She Said'

By Vicki Vantoch
Special to The Washington Post
Monday, November 1, 1999; Page C04

In a society where spilled coffee can lead to multimillion-dollar lawsuits, it's not surprising that many divorces end in nasty legal battles. In attempts to circumnavigate the ugliness and expense of traditional "War of the Roses"-style divorce, Americans are increasingly turning to an alternative settlement process--mediation. Since the concept took root in the 1970s, divorce mediation has become so popular that now some states even require it. Virginia, Maryland and the District offer cost-free divorce mediation as an alternative to litigation.

For couples who don't want to participate in America's litigation craze, divorce mediation seems like a panacea. Using a neutral third party to facilitate communication between the parting parties, mediation promises a cheaper, speedier and more peaceful alternative to the traditional adversarial system.

John Haynes, founder of the 3,600-member Academy of Family Mediators (AFM), estimates the average divorce costs $15,000 and takes about a year. "Mediated cases," he says, "are usually wrapped up in six weeks and only cost about $2,500" (including court filing).

Proponents say mediation encourages "win-win" settlements. Unlike the traditional legal system, parties are able to create their own solutions without formal guidelines. To accomplish the task, mediators use a range of styles and techniques, including the martial arts, mathematical formulas and religious scriptures.

Don Saposnek, psychology professor at University of California at Santa Cruz, for instance, uses the Japanese martial art of aikido as a mediation tool. Purists argue that mediators should facilitate communication without recommending a solution, but Saposnek says he doesn't "make decisions for [couples], but I try to artfully steer them. I conceptualize the room as a field of energy and all their anger and hopes are just energy," he says. "Then using aikido principles, I move that energy in the room and maneuver the people to not oppose each other."

The Rev. John Myslinski, on the other hand, uses a less-directive approach. "You don't need a degree in counseling to sit down and have a cup of coffee and listen," says the pastor at St. Mary's Church in Rockville. "And, I remind them: If you can't practice charity, at least, you can promise you won't hurt one another. Then, I put it in God's hands."

The faithless may find it easier to trust in a mathematical algorithm when it comes to dividing the family fortune. Steven Brams, a professor of politics at New York University, and Alan Taylor, a mathematics professor at Union College in New York, have recently devised a formula that guarantees an "equitable, efficient and envy-free" split of marital property.

They explain the procedure in "The Win/Win Solution: Guaranteeing Fair Shares to Everybody" (W.W. Norton, 1999, $24.95).

"Couples commonly fight over something ridiculous like an old chaise longue," says Norman Lavery, a mediator who swears by the formula (each party gets 100 points to divide among the goods). This method allows couples to "value objects in terms that are important to them, rather than just using the currency of dollars," he says.

The trouble with these diverse mediation techniques is consumers never know exactly what they're getting. And as a relatively new profession, mediation is still struggling to define itself and to develop uniform standards and qualifications. "Regulating mediation may take away the flavor of the profession, but if you don't, you could have a bunch of jerks out there harming people," says Saposnek. The American Bar Association's proposed regulations, however, may not be what mediators have in mind.

"A lot of people in the legal community see mediation as a threat, as the unauthorized practice of law," says Kathy Fazzalaro, the co-executive director of the AFM. According to Fazzalaro, the mediation community isn't exactly pleased with the ABA's proposal to limit mediation to those with law degrees.

"Some states require mediators to be lawyers," says Geetha Ravindra, director of Dispute Resolution Services at the Supreme Court of Virginia. "Our philosophy is that people from a variety of backgrounds bring a wealth of knowledge, skills and experience to the process. No particular degree makes you a good mediator."

One McLean resident agrees. "We tried everything. First, we went to a mediator who did nothing but repeat like a parrot. Then, we went back to lawyers who charged $500 for every little change on the agreement. Finally, we found a brilliant mediator . . . it only took one session. Mediation is definitely the way to go, but the key is to find a good mediator," she says.

Today, even if you want to slug it out in court, you may be required to try mediation first. The District allows divorcing couples to choose between court-sponsored mediation and litigation. Virginia also provides mediation as an option (at no cost) and allows judges to mandate a mediation evaluation. After the evaluation, mediation is voluntary.

Detractors are concerned that mediation may not be an appropriate substitute for adversarial proceedings, and most mediators agree that it doesn't work if there's a substantial power imbalance between the parties, as in domestic violence cases.

Some feminists worry that women might compromise because they don't know their legal rights. To make the process more equal, some mediators have started working in "gender-balanced" teams.

"Clearly, mediation can be successful with couples who want to do right by each other and aren't trying to manipulate each other," says Martha Fineman, a law professor at Cornell University and Columbia University. "But, in mandatory mediation, it often doesn't work and adds an extra layer of cost and time. Often the assets are frozen and the person who isn't the primary wage-earner is at a financial disadvantage and might make concessions to speed things up."

Fineman is particularly concerned with a mediator's concept of what's fair. "Mediators can move things in a direction that isn't best," she says, citing joint custody as an example: "Mediators think joint custody is fair, but it's not always the way things should be resolved in real-life cases."

Unlike the court system, which can subpoena evidence to prove each party's total assets, "mediation doesn't have any rules to govern the introduction of evidence," says Fineman. "People want to know that it's fair. If you decide to heavily regulate, then it starts to look like jury-rigged adjudication. Why not just use law? What does mediation add?" Fineman asks.

"Matrimony law is extremely complicated. It's like the dissolution of a business partnership," says Justice Phyllis Gangel-Jacob of the New York State Supreme Court. "God knows, I want settlement in all these cases, but you have to know what the consequences are and I don't think you can do that without a lawyer."

A mediator may not be familiar with the legal ins and outs that could benefit both parties. For example, Justice Gangel-Jacob cites one divorce case, where she suggested that the divorcing couple wait three months to split up because after 10 years of marriage, the woman could start receiving Social Security benefits. "They were thrilled," says Gangel-Jacob.

"I'm appalled that social workers are writing up divorce agreements for people," says Gangel-Jacob. "They don't even understand the legal consequences of child custody."

Five-way meetings, a new trend in divorce mediation, aims to resolve these problems by bringing lawyers into the process. In five-way meetings, both parties are fully apprised of their legal rights but can still benefit from communicating via a mediator.

The inclusion of mediation in the formal legal system is "great because it legitimates mediation and popularizes it," says Robert Benjamin, an attorney and mediator. "But," he warns, "the legal system might kill it."

In order to flourish, "mediation must remain fundamentally subversive," says Benjamin. "If you take a process that is geared toward giving people back control over their lives and [then] institutionalize it--you've got a problem. Mediation may become one more cog in the increasingly overwhelming intrusion of courts and police authorities in our lives."

The Fine Print

Divorce mediation typically takes four to eight sessions, or six to 24 hours, to reach an agreement. The cost: $100-$300 per hour.

Court-Sponsored Mediation:

* D.C. courts won't recommend mediators, but people filing there can choose between litigation and mediation. Court-sponsored mediation in Washington is free to divorcing couples. The program usually uses male-female mediation teams. It also tries to use one lawyer-mediator and one mental-health professional mediator. Information: 202-879-1549.

* Virginia publishes a directory of more than 1,000 mediators certified by the state. It can be found online (www.courts.state.va.us) and in clerk's offices of Virginia courts. Most areas in Virginia provide free mediation. Information: 804-786-6455.

* Maryland courts can require mediation in custody disputes (www.courts.state.md.us). Maryland Alternative Dispute Resolution Commission (410-321-2398) prints a directory of Maryland dispute resolution professionals. Maryland Council on Dispute Resolution (410-719-0580; Doug Brookman) provides mediation information to the general public.

Web Sites:

* http://www.divorcenet.com posts divorce information for each state and includes online bulletin boards.

* http://www.divorceinfo.com offers information on divorce mediation and litigation.

Other Resources:

Mediation Works, Vienna (703-757-7364) uses gender-balanced teams of two mediators.

Academy of Family Mediators (781-674-2663) features a referral list of AFM mediators and articles on mediation on its Web site, http://www.mediators.org.

Society of Professionals for Dispute Resolution (202-667-9700) hosts mediation conferences.

Northern Virginia Mediation Service, Fairfax (703-993-3656), provides mediation workshops.

Books Include:

"Using Divorce Mediation: Save Your Money & Your Sanity," by attorney-mediator Katherine Stoner.

"Choosing a Divorce Mediator: A Guide to Help Divorcing Couples Find a Competent Mediator," by Diane Neumann.

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