This article appeared in the winter 2013 issue of Family Law News, published by the Family Law Section of the Virginia State Bar Association.
Consider this. After twenty years of marriage, two parties separate. They are each college educated, and are each gainfully employed. The parties have two children whom they hope to send to college, ages 13 and 15. They have amassed a lot of assets during their marriage.
A retired judge is hired by counsel to mediate. The case is currently on the docket for a two day trial on all issues, to be heard a week or two after the scheduled mediation session.
The mediation session starts at 9 a.m. It concludes 16 hours later at 1 a.m., with signatures on a document prepared by counsel during the session.
During the mediation, the parties are told the expectation is that:
1) they will stay “for as long as it takes until it is done,”
2) with each party and his or her counsel in separate rooms, and
3) the parties must sign a comprehensive written Agreement before the matter can be concluded, because otherwise someone might try to “renege” on the Agreement, or might “change his or her mind and the settlement will fall apart.”
The fruits of a twenty year marriage are then divided up by numbed and exhausted parties under extreme pressure with a rather hastily finalized document.
It is my opinion that this is an increasingly common but absolutely wrong way to resolve the dissolution of a marriage, and to divide all that two people have in this world.
To work on a negotiation only a week or two before trial does not allow enough time for thoughtful drafting and consideration of the final Agreement. I submit that if a non-litigated form of dispute resolution is to be used when a case has already been set for a final hearing, those negotiations should occur at least one month before trial. We would never want to put a client in a position where he or she “has” to settle because there is no time left to litigate. If trial is only a week or two away, it is time to focus exclusively on trial preparation, such as witness testimony and the finalization of exhibits, or the litigant will not be ready for trial.
I submit that to conduct negotiations in one marathon session of more than 8 or 9 hours is too heavy a burden to place on already stressed parties, especially if they are trying to co-parent. To consider the division of all that a couple has – their children, their home, their retirement and their investments, and to consider the monthly budgets and expenditures of each party for the rest of their lives in determining support, should be a thoughtful process, not one that is rushed. When there are children sitting home wondering where their parents are, and when parties have jobs to go to the next day, it is hard to see how a family is well-served by keeping the parties up through the wee hours of the morning.
To minimize the pressure on the parties, and to allow sufficient time for the disputants and counsel to properly consider settlement terms, adequate time should be arranged. At least two sessions should be scheduled at the very outset. Often there will be tasks to be undertaken and information to be obtained after the first session. Or the issues may be resolved at a first session, and an Agreement finalized and reviewed before a second session. At the second session, final points are clarified, raised or drafted, and the Agreement can be signed. Much can be accomplished more efficiently in two sessions that run from 10 a.m. to 4 p.m., than in the middle of the night after 10 or 12 hours of negotiations.
In addition, keeping parties in separate rooms can tend to increase adversarial posturing. Perhaps some feel this sort of pressure is beneficial when this method of assisted negotiation is used, but when the disputants then have to share carpooling duties for their children, the process will likely have damaged the family dynamic more than is necessary. Not to mention the lost opportunity of obtaining some real transformative results because each side is kept in the dark about the real concerns and fears of the other, which fears and concerns could have been properly addressed and resolved. By keeping parties apart, the attorneys are unable to obtain helpful information directly from the other party that can be gleaned through body language and direct discussion.
Furthermore, to require signatures on a document at the end of a long session invites error. Yes, it is quite possible that an error or two was made that should be corrected, something was forgotten, a new issue occurred to someone later on, or someone might have changed his or her mind on something. All of the above is to be expected, is perfectly normal, and is appropriate to address. Including changing one’s mind. There is no reason why assisted negotiations should be viewed any differently than simple 4-way negotiations, where Agreements are tweaked and perfected until they clearly embody what the parties want embodied.
Of course the possibility of one of the parties changing his or her mind after a high pressure session is exactly why settlement efforts should occur well in advance of trial. If parties are allowed three days to change their minds when they purchase fitness plans or sign certain other contracts that may be entered into with high pressure tactics, surely more important matters should be allowed adequate time for reflection. If a settlement falls apart, it likely wasn’t a good settlement for someone, and the matter needs to go to court.
I for one would like this sort of marathon, last minute, separate room settlement approach that has to be concluded with the signing of a document before anyone can go home, to be curtailed. However, if a third party will be assisting litigants in their negotiations, at least the following parameters should be followed:
1. At least two mediation sessions shall be scheduled at the very outset.
2. Each session shall be calendared to run from 9:00 or 10:00 a.m., until 4:00 p.m. That way no one is getting up before dawn, and the work is done during a “normal” work day, with a little wiggle room. The session may run over to 5 p.m., but the participants can try to finish by 4, knowing they have built in a little extra time if that time is essential to wrap up an issue.
3. No settlement negotiations are undertaken unless there is still adequate trial preparation time, which likely means that to properly allow for at least two sessions and time to draft and finalize an Agreement, no sessions will be scheduled later than one month before trial. If attempts will be made to settle, there is no reason not to obtain any necessary information and then start discussions early on.
4. For at least part of the negotiations, both parties and both counsel will all be in the same room to check in with each other, at least when the parties have children together. Seasoned family law attorneys who are trying to help a family move forward through their conflict should be able to manage a productive four way discussion. I submit that there is no benefit to reinforcing a perceived need to keep parties apart if they are trying to co-parent. A party should not need to be “protected” from expressing his or her valid views in front of the other party with assistance of counsel.
5. An Agreement will be drafted or finalized after the session ends. The document will be circulated. Everyone will think about it, and someone will inevitably find some errors, omissions, missed items, need for clarification, new considerations, and math errors, and may even have second thoughts on something. That is appropriate, common, and not to be feared. There is nothing different about assisted negotiation that mandates rushed signatures on Agreements that have not been properly considered and checked, just so settlement can be proclaimed.
When parties want to settle, they will settle. If they want to litigate, then they should litigate. It is my concern that attorneys are increasingly calling in third parties to help settle cases after excessive attorneys fees have been incurred, which cases could have been settled cooperatively or collaboratively from the very outset at less cost. I am further concerned at what I perceive to be an increase in the litigation of cases up to a point, (generally after excessive posturing, discovery and Motions over matters that could have been easily negotiated), and then the decision of counsel that “it is now time to mediate.”
I am not convinced that it is the decision of a party to “finally” settle. I am concerned that this process of shuttle diplomacy is increasingly being used for cases in litigation that at least one attorney decides it is time to resolve because he or she never had any intention of fully litigating the case in the first place, maybe with or without the client’s full understanding of the options and timing.
It is my hope that new attorneys especially will take these thoughts to heart, and will stand up to more seasoned counsel who wish to pressure physically and mentally exhausted parties to sign rather hastily prepared documents on the eve of trial after marathon sessions where the parties don’t even look each other in the eye.
Maybe after 24 years of litigating, negotiating, collaborating and mediating, I am missing something in failing to see the benefits of the high pressure last minute settlement of family disputes. Perhaps some third party mediators could obtain the training to manage all four participants in the same room, which method can produce a more satisfying and transformative result for families.
I would be happy to read an article that enlightens me as to why high pressure settlement is ever a good idea. I would also be happy to see more family law attorneys have the confidence and honesty of working towards settlement at the very outset through 4-way meetings using the collaborative process.
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