There is no doubt that divorce mediation has been a success and is slowly changing the landscape of divorce. But the legal profession has now fought back and created another version of mediation — but one that will not dislodge the lawyers from the center of the process. This is happening in North Carolina and states all around the country, in order to not only preserve legal fees but additionally create a new billing event for attorneys, while allowing them to pose as progressive.
A little divorce law history
Those old enough to remember may recall that the seventies were also the era in which psychotherapy became a mainstream service. You did not have to be crazy to see a psychologist or a counselor; you merely had to be unhappy. Psychotherapy for the “worried well” became part of the middle class rite of passage. The reason this was important was the psychological profession began to bear witness to the emotional carnage being committed in the divorce industry and began to ask whether it really had to be so destructive. So about 1977 to 1979 a coalition of family therapists and other psychotherapists as well as a few reform minded lawyers began to explore what was then a radical alternative. Why not bypass all the legal procedures and offer couples a direct route to an amicable settlement of their divorce. And so divorce mediation began to emerge as a radical alternative in which a single impartial mediator would help a couple have discussions and negotiations they could not have on their own and provide the leadership and setting that facilitated the couple in working out a settlement on their own. Although they would run the agreement past lawyers in the end, and were free to consult with lawyers when they wanted advice, this mediation process required very little lawyer time compared to conventional divorce. Couples could now resolve their divorces in a few months rather than years at a small fraction of the cost of a conventional divorce. Additionally, because the parties did not savage each other in court, and because the parties did most of the talking, mediation had the added advantage of helping divorcing couples learn a new way of communicating so they could cooperate around issues regarding children. It quickly became apparent that couples who succeeded at mediation had more successful divorces with less post divorce conflict and that a much lower level of general trauma.
Divorce mediation was good for divorcing couples.
But it was not so good for the lawyers who were threatened with the potential loss of billions in revenue. Most of the time lawyers devote to a typical case is a waste of time but justifies billing the client. Bar associations declared war on mediators and tried to argue that mediation was unethical. I was the first divorce mediator in New Jersey and the bar association unsuccessfully tried to have me disbarred. This warfare went on throughout the country for a good ten years until the bar and judiciary grudgingly accepted defeat. So in the past thirty years divorce mediation has grown to the point where there are thousands of practitioners and every year more people divorce using mediators.
In authentic mediation, the mediator works directly with the couple to help them define their issues and negotiate solutions to their problems. In this mediation lawyers are kept in the background and consulted only when the client feels the need. The result is that the clients do the talking and take responsibility for the result. By comparison, in the lawyer centric divorce the lawyers do the talking reducing the clients to the passive position of children rather than responsible adults. It is the focus on direct communication that is the psychological heart of mediation and which is completely lacking when lawyers take over. This may be why half of all lawyer negotiated settlements end up back in court within two years with parties fighting over kids and money. Because they often feel the terms of the settlement were imposed on them clients in conventional divorce have a low level of commitment to the terms of their settlements. By contrast, clients in mediation feel that they have authored their settlements and have a much higher commitment to honoring the terms. It is estimated that less than five percent of couples who successfully mediate go back to court.
The North Carolina Court, along with the North Carolina Bar Association created a court attached mediation program. After lawyers have developed a case, and after the parties are thoroughly polarized, the court orders mediation. This means that another lawyer meets with the two lawyers and their clients for a day to try to negotiate a settlement. The “mediators” are litigators who have attended a five day seminar and then observed two mediations. Then having not performed a single mediation they are “certified” by the Supreme Court as “certified” mediators who can be appointed by the court to mediate between the lawyers. This essentially replaces what used to be called a “four way” conference at which most divorces were settled and also largely replaces the judge run settlement conference.
This “mediation” bears no resemblance to real divorce mediation and offers none of the advantages. It is very expensive. Each client pays his/her lawyer to spend hours preparing and then spend a day in the mediation conference. They also have to pay the third lawyer serving as the mediator. Consequently it is not unusual for such mediations to cost the couple upwards of $10,000. These conferences usually result in a settled case. But there is serious question whether they add any value. This is because the case would have settled anyhow even if the lawyers met without the mediator. Remember that about 99% of cases settled before the state adopted this version of mediation and 99% settle with the mediation. So there is essentially no difference except higher fees to the clients.
Don’t be misled by your lawyer. This court mandated mediation does not lower your costs, speed up your divorce or teach you new ways of communicating. It is not much more than another opportunity for the divorce bar to separate clients from a little more of their money.
Sam Margulies, Ph.D., J.D.
Sam Margulies, Ph.D., J.D., is one of the most experienced mediators in the United States. Since 1980, he has mediated hundreds of civil disputes and approximately four thousand divorces including many complex multi-million dollar matters.
Author of several books on divorce, Sam Margulies is an empathetic and knowledgeable guide through the difficult journey of divorce. Residing in North Carolina but helping clients all over the world, contact Sam with your questions and to talk about your divorce.
- When to Choose Mediation over Conventional Divorce and Attorneys (sammargulies.com)
- Why should you download one more free eBook? Because this one will help. (sammargulies.com)