Recent Posts in Confidentiality in Mediation Category

What Marriage of Davenport Means for Mediation

The Take-Away

Davenport is a ground-breaking decision on a number of fronts, but particularly because it chronicles in painful detail the types of aggressive and adversarial conduct that relationship breakup and the accompanying litigation tend to generate. It is more than a cautionary tale for lawyers. It reminds us that while some lawyers are busy proclaiming that their only concern is protecting clients who've been allegedly mistreated, when these warrior representatives become overly enmeshed with their clients' views and experiences that there is a huge but in some ways natural risk that they will lose all objectivity and become so identified with their clients' fears and hurts that the lawyers themselves act as if they were the ones who are divorcing the other side.

I call this a "natural" risk because I admit from my own experience that it requires effort and continuing reflection for attorneys (and even more so the parties) to remain focused on the process of solution-finding in a civil and non-emotional manner. This is a "tall order" to be sure. A good example of what happens when one is failing in this regard is that attorneys may abandon decorum and professionalism, and ignore well-established legal rules including the fact that mediation is, and must remain, confidential.

As I've written countless times, the adversarial, government sponsored method for resolving relationship breakup in anything approaching a holistic fashion is deeply flawed - principally because we humans are hard-wired to fight, flee, and react. One way that Family Court can meet its promise of protecting all the people who resort to the Courts requires that the consequences for obstreperous and unruly behavior be made known to disputants and legal professionals, and that divorce judges in appropriate cases impose those monetary consequences. Sanctions deter misconduct from continuing, and attorney fees compensate the victims of such misconduct. Historically judges have been relatively timid in awarding sanctions and fees in sufficient amounts to really compensate aggrieved parties from out of pocket losses caused by litigiousness, but this is judicial attitude is clearly changing. Appellate and family court bench officers are realizing that if they don't step in and manage out of control litigants in a meaningful way, that the public's confidence in government generally and the judiciary specifically will continue to erode. In the absence of accountability, those contestants and lawyers who insist on being bullies and running up fees will succeed in controlling the very asylum their behaviors create.

Fortunately for you, since you've bumped into this Blog and had enough interest to wade through it, something about mediation and the too common tragic consequences of adversary litigation resonates.

While it takes two sides to agree to mediation and then to stick with it in good faith, and mediation gives no guarantees (indeed, to whatever extent it was attempted in Davenport it was evidently doomed to fail by the attitudes of at least one side), Justice Richman together with his colleagues, Justices Kline and Lambden, provides us with a template that is instructive:

• The parties are responsible for the tone of their family law proceeding 

• The parties reap the rewards or pay the consequences for the choices that they make, or which their attorneys make for them

• Selecting your attorney in a family law case is a critical decision. It is also problematic because it is challenging to obtain enough information, that is reliable, at the outset to know whether these attorneys will walk their talk (the sanctioned behavior of the law firm that represented Jill Davenport contradicts the Mission Statement and Firm Philosophy pages on that firm's website; to be fair such statements are aspirational, but they also need to be authentic). Most  people must initially make a leap to faith in their selection

• As one of the two parties to family litigation, you have an ongoing duty to yourself to evaluate whether the case is heading towards solutions, or devolving into name-calling destructive chaos. If you find yourself invigorated by the ongoing conflict, and are instructing your gladiator to thump the other side 'no matter what it costs' you risk losing yourself within a dark and dangerous forest and the blame and responsibility is rightfully yours

• It is entirely natural, nonetheless, to have moments where you feel overtaken by the trance of the divorce experience (or to have periods of clarity where you recognize that you've been stewing in reactivity, much like when we find ourselves standing in front of the bathroom mirror with a toothbrush in our mouths, remembering nothing about how it got there). The trick for parties, and for lawyers, and what may make all the difference for you and your family, is that we benefit from clearing our heads from time to time and from exercising a willingness to put the past aside (I'm speaking to reactive outbursts) and start afresh, time and again. If we don't do this, we may become prisoners - we are only helpless when we fail or refuse to stop and reflect, something no one else can do for us

• Consider mediating your matter while having a willingness to not view that process as a more sophisticated way of achieving the same financial or emotional outcomes you might seek or expect in litigation. Mediation works when people chose to cooperate on at least some levels. If everything must be your way, and if your mind tells you that you should get exactly what you feel entitled to (what the other party thinks is important be damned), you always have Family Court waiting out there ready to swallow you up!

• Be respectful of others, and be kind and patient with yourself. Even if you must litigate (as where the other side insists), seek out expert lawyers who value peacemaking.

And rest assured that your efforts to mediate will be appreciated and safeguarded by outstanding Family Court bench officers and their counterparts in the higher courts. 

The question of mediators talking to one party in the absence of the other can come up in a variety of contexts. This Blog discusses initial contacts from one party, often when they are simply seeking to learn about our services or other general information. We hope that this website can itself answer as many of your questions as possible, without the need for any direct contact outside of the mediation rooms between participants and mediators and before the Orientation or Initial Mediation Sessions. We are eager to talk to you both whenever we are all together!

At DFMS our mediators attempt to avoid speaking to either party directly outside the presence of the other. This includes what we call our "Intake Process." The only exceptions generally involve scheduling an Orientation Meeting, or when a client calls who happens to catch us answering a phone. Instead we attempt to filter your initial calls through our non-mediator resolution assistants.

If we do wind up speaking with you, please understand that we will decline to discuss your case, your position, the facts, your expectations, the other party, or anything that would tend to enlist us outside our positions of neutrality. We are not being rude.

I have been asked 'well, since you aren't deciding our cases or acting like a judge, what is wrong to talking to you outside the presence of the other party?' My answer is usually something lilke this: "If Jane was wanting to have this conversation with me, and asked I not tell you, Joe, about it or insisted that it didn't matter what we discussed, would the mediation process feel safe for you?" 

There are two aspects to this dilemma: (1) it is essential that your mediator actually be neutral and unbiased in order to protect the integrity of the process, and even seemingly innoncent conversations tend to create an unconscious bond between participants and (2) it is equally critical that there be no appearance of bias, meaning that certain boundaries must go into effect from the first communication so that both sides are convinced that the process is fair. 

However, this is not to say that you and the other mediators at DFMS, along with your spouse or partner, can't jointly decide to a different arrangement once the mediation process is underway if everybody - including your mediators - agree. However, this will be rare.