mediation.jpgCommencing March 14, 2011, parties to a Nassau County divorce action may be required to participate in a mediation session under a program initiated by Justice Robert A. Ross, Supervising Judge of the Matrimonial Parts. After a preliminary conference, the judge assigned to the case will decide whether the case is suitable for mediation. The parties will be allowed to mediate some issues and litigate others.

The introductory session will be free, using one of the more than 40 mediators who have been enlisted to participate in the “Matrimonial Alternative Dispute Resolution Program.” If the parties decide to continue, they will pay for further sessions.

The NYS Unified Court System has been committed to promoting the appropriate use of mediation and other forms of alternative dispute resolution (ADR) as a means of resolving disputes and conflicts peacefully. However, one may question whether mandated matrimonial mediation will be effective.

In mediation, a neutral person helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the case, but helps the parties communicate so they can try to settle the dispute themselves.

Mediation may be inappropriate if a party has a significant advantage in power or control over the other. Moreover, it may be said that any one of at least five people may prevent a piece of divorce litigation from being settled early. Of course, the expectations, needs or emotions of either of the parties (or, indeed, the children) may interfere with a reasonable exchange of ideas. Early reasonable compromise may also be inconsistent with the goals or style of one of the litigating attorneys. The judge, him/herself (or the history or prior rulings in the case) may have placed obstacles to settlement which need to be overcome. Finally, the friends or family of the parties, based on their own need for vengeance or their “knowledge” of the law, may spur the parties toward battle.

Mediation lacks some of the substantive tools of other forms of ADR. For example, Nassau County has made use of Early Neutral Evaluation panels. ENE was designed to provide parties with an early and frank evaluation of the merits of a case by an objective observer. It can provide a “reality check” for clients and lawyers, identifying and clarifying the central issues in dispute, assisting with discovery and motion planning or with an informal exchange of key information, and, if possible, facilitating settlement discussions, when requested by the parties. In practice, however, the ENE process was used late in the litigation, often when the case had already been certified ready for trial.

With arbitration, the neutral person hears arguments and evidence from each side and then decides the outcome. Arbitration is less formal than a trial and the rules of evidence are often relaxed. In binding arbitration, parties agree to accept the arbitrator’s decision as final, and there is generally no right to appeal. In non-binding arbitration, the parties may request a trial if they do not accept the arbitrator’s decision.

Much newer to New York, Collaborative Law is a process practically, financially and emotionally committed to a negotiated settlement without litigation. In Collaborative Law, each party is represented by a specially-trained lawyer. The parties sit together with their lawyers in face-to-face meetings identifying and resolving the issues. With the “interdisciplinary model,” a mental health professional is used to identify emotional issues which may be blocking the process. A commitment to financial “transparency” and the use of neutral financial specialists can greatly accelerate the exchange of information and keep matters private. If either spouse decides to go to court to litigate, both parties must hire new lawyers and other retained professionals. This motivates everyone involved to continue working toward a mutually agreeable resolution.

It is regrettable that mediation is now being mandated in large measure because the resources of the judicial system cannot properly handle the case load (1100 to 1200 cases in Nassau County annually). Moreover, mediation remains the form of ADR with the least teeth. Thus, it will only become a powerful tool if a speedy judicial resolution is the alternative.

One program to recognize this is the Martin P. Violante Alternative Dispute Resolution (“ADR”) Program for the Eighth Judicial District (Western New York). Section 6.2 of their Protocols (pdf) provides that referrasl to ADR in contested matrimonial and Family Court cases will not stay the Court proceeding. OCA policy in family cases recognizes the special need for prompt action. As a general rule, full discovery, emergency and pendente lite relief, family dynamics, and the needs of children require ongoing access to the Court. However, if the parties agree that additional time is required to fully explore resolution through ADR, they may request an adjournment of a court date from the Assigned Judge, which may be granted sparingly.

The concept that ADR is needed because the judicial system doesn’t work is offensive. However, each of the ADR forums does have a lot to offer. I fear mandating a single mediation session, though, will be of questionable value.