What a paradigm shift in mediation looks like

The approach to mediation at Lasting Agreements has evolved so significantly over the dozen and a half years that it is fair to say a veritable paradigm shift has occurred. What does that paradigm shift look like? Where does it surprise you? How does it feel? Why does this matter? What does this mean to you? How can you and those whom you care about benefit from participating in a mediation process that is framed within this new paradigm?

The reader will find thoughtful responses inspired by these questions and more in the body of this essay. But first let us set the stage by first looking at the design of primary dispute resolution in the United States, how it works, and what issues arise from this design that are often better addressed by alternative models.

Next we shall note what some of these alternative models are. The standard approach to resolving disputes in the United States is called litigation. Alternatives to the standard approach of dispute resolution include mediation, arbitration, neutral evaluations, family conferencing, restorative justice, and collaborative law to name a few. Settlement conferences typically occur within the context of litigation but not always.

Typically, these alternative approaches to resolving disputes are collectively referred to as Alternative Dispute Resolution or ADR. Within a general consensus of what ADR is, there is a range of understandings. Many mediators and arbitrators with attorney backgrounds hold that ADR merely represents a variety of approaches to resolving disputes without going to court (alternatives to trial). Standard settlement conferences are often included in this understanding.  Others hold that ADR represents a variety of approaches that are not merely alternatives to trial but alternatives to litigation altogether. Standard settlement conferences are often not included in this understanding.

With respect to the ADR continuum, it is the intent of this essay to pay particular attention to mediation. We shall explore how mediation is similar to the standard (primary) model and how it differs. Where litigation consists of a clearly defined set of practices, mediation is much less regulated and consists of a wider array of practices depending on the mediator’s background and training. Another paper elsewhere on this website compares and contrasts a variety of approaches all of which fall within the mediation framework. As mentioned above, many lawyers who say they practice mediation actually facilitate settlement conferences instead. Many lawyers typically have not undergone mediation training (although there are notable exceptions) but they did learn how to conduct settlement conferences while in law school so they simply do what they know (and give it a different name: viz. mediation).

It is always wise for prospective mediation clients to ask the mediator about their background, whether or not they received specific mediation training, from whom such training was received and whether or not they underwent any sort of internship that was specific to the practice of mediation. We’ll explore the differences between mediation and settlement conferences in more detail later on. For now, suffice it to say that it is our view here at Lasting Agreements Mediation that settlement conferences fall within the primary dispute resolution model (they are merely an alternative to trial– not an alternative to litigation) whereas mediation is an approach to alternative dispute resolution that is more specifically an alternative to litigation.

Finally, once we have clarified the distinction between primary dispute resolution and alternative dispute resolution (focusing on mediation in particular), we will explore what mediation that has undergone a paradigm shift looks like. The paradigm shift is to frame mediation not merely as an approach to dispute resolution at all but instead to frame it as a collaborative data-driven system design project in which needs, yields, energy and resource flows as well as a specific set of living system design principles inform the look, feel and functionality of the design of a living system where the mediator serves more as a system design coach rather than a referee to the parties involved.

No matter what one’s background is, we at Lasting Agreements think everyone considers divorce to be a life crisis. Often conflict is involved in dealing with this crisis. The Chinese word for conflict is actually a semantic compound represented by two (ideographic) logograms or symbols. The first ideograph represents the idea of crisis, the second represents the idea of opportunity. In the United States, I think it is safe to say that an overwhelming majority litigators and mediators focus their intervention around the conflict aspect of divorce. At Lasting Agreements Mediation we focus less on the conflict dimension of divorce and more on the aspects of divorce as a crisis and opportunity. Although conflict is addressed in our approach to mediation, we have shifted our attention away from it as our primary focus.

If we think about a family going through a divorce, we can consider three possible scenarios:

1. Litigation: primary dispute resolution
   One parent has harmed the other parent. The nature and degree of harm is named. The parent who caused the harm is blamed. The extent and degree of harm suffered by the injured parent and the family law that provides a remedy to compensate the injured parent is claimed. A full investigation will be conducted to establish the full array of facts of the case and the degree of injury suffered by the harmed party. The court will determine what remedy provided by law will adequately compensate the harmed parent. Such remedies (often punitive) typically take the form of maintenance (alimony), child support, and parenting time. Fault is often framed in terms of perceived or alleged (not necessarily proven beyond a reasonable doubt) psychological dysfunction of at least one parent or abuse and neglect of at least one child. The parent whom the court decides is the least distasteful is deemed the winner. The losing parent is often maimed in the process. In short, primary dispute resolution uses a name, blame, maim, claim approach to resolving conflict in family court.
2. Mediation: alternative dispute resolution
3. Mediation: living system design project

 

Litigation: Primary dispute resolution
Litigation typically is said to begin when at least one party in a case hires an attorney to represent their interests. In litigation, each party starts by investigating the facts of the case. Investigation provides information about what harm allegedly occurred and how it occurred. The second step is to determine who perpetrated that harm and why they did it (motive). The party that was allegedly harmed is called the plaintiff (the root of this word is the same as for the word complaint)- while the party that allegedly caused the harm is called the defendant. The third step is to conduct legal research to find out which laws provide for a legal remedy for the specific harm that occurred and what that legal remedy should be.

Only those facts that specifically pertain to the laws that govern the case in question are allowed to be admitted into evidence. No other facts are allowed to be considered in deciding the outcome of the case and thus are considered to be irrelevant. Sometimes questions of facts or points of law are disputed.  A disputed question of fact or point of law is considered an issue. Attorneys (litigators) use arguments to resolve legal issues, i.e. questions of fact or points of law.

Although it is presumed from the outset that one party has harmed the other party, that the harmed party is entitled to a remedy to compensate for the physical or economic injury (damages) experienced, and that the law provides for such a remedy, litigation does not necessarily involve initiating a lawsuit. Often the plaintiff (usually represented by their attorney, occasionally representing themselves, pro se) can convince the defendant that the evidence that supports the facts is clear and the remedy provided by law is clear and the defendant is willing to settle without undergoing a trial.

If the opposing parties to a case are unable to reach agreement concerning disputed questions of fact (e.g. arguing that the evidence does not substantiate a certain fact) or points of law (e.g. arguing that a certain point of law does not, in fact, govern one or more of the established facts of the case so the remedy provided therefore does not apply) then the parties can petition (ask) a court of proper jurisdiction to hear the matter. If the matter goes to trial to resolve disputed legal issues, the judge or magistrate essentially determines which party is the winner of the case and which is the loser.

At trial, once any pending procedural issues are resolved, each party begins by making an opening argument.   In the opening argument, each side states its position on the legal issues and what it thinks the legal remedy should be. It provides an overview of the evidence it intends to use to establish points of fact and argues why certain points of law and the remedies it contains should be applied to the case.

The middle part of the trail consists of the evidentiary proceedings. This is where evidence is presented from (often) a plethora of investigations to establish the facts of the case and determine which parent has harmed the other, how much they have harmed the other and what remedy is provided by law to redress that harm.

The conclusion

 

Article still in process….

A Critique of Divorce Litigation; Reframing Mediation as a Design Project To Design the Best Possible Two-Household Family For the Benefit Of Your Children

Mediation is a process that has been used to resolve disputes over child custody, parenting time, child support, the division of marital assets and other divorce matters since the 1970s. Because the arena in which spouses/parents undergoing divorce resolve disputes has historically involved litigation, as mediation has gradually emerged as an alternative process it came to be dubbed a form of alternative dispute resolution. Other processes besides litigation have been tried as well. Such processes include settlement conferences, family conferencing, arbitration, mediation/arbitration (med/arb), and so on. All of these approaches have come to be considered under the umbrella of Alternative Dispute Resolution, or ADR for short.

Although increasing numbers of divorcing couples have utilized various forms of ADR over the years it remains true that as 2014 is coming to a close, litigation continues to be the primary approach to settling matters of divorce in the United States. This is not true in other countries throughout the world.

Through a series of articles, reports on research findings, book reviews, videos, and links to other websites, the purpose of this blog is to explore why we think litigation remains the intervention of choice for most Americans seeking divorce, what myths people hold about the benefits of litigation, and what unintended consequences arise from the prevalence of using litigation to settle matters of divorce. It is our view that a prevalence of research shows that many people who litigate their divorce are often surprised and dissatisfied by the outcomes of litigation.

Furthermore, many people who rely on a judge to determine the look and feel of their new two-household family often find that the parenting plan is vague, custody, parenting time, child support and the division of assets is unfair, many details remain unresolved, the children are upset, may be doing poorly in school and may develop emotional problems. And the price tag for all this is far more expensive than anyone’s wildest imagination could ever have conjured up at the outset!

It doesn’t have to be this way!

Our purpose is to invite you to radically shift the paradigm within which think about divorce. We encourage people seeking divorce to consider our approach to mediation not as an alternative but as primary dispute resolution (PDR). The Chinese word for conflict is actually made of two words: crisis and opportunity. In divorce, the crisis part is obvious. Yet in the face of this crisis, designing and building an efficient, resilient two-household family is an opportunity that we can help you accomplish. We hope that, after working with us, you come to consider litigation not as your first pick but only as a last ditch alternative. We are convinced that with mindful attention, a good heart and a little coaching from us, you will feel no need to put your trust in the hands of others. You cant win in the Olympics if you let your coach do all the work! Well let you drive but well help you design and navigate the road map.

To address the question of why litigation persists as the approach of choice in the face of such pronounced dissatisfaction, we will explore the socio-cultural context in which litigation has its roots and focus closely on how the litigation system (including family court and child protective services) has evolved over time. We will seek to identify some of the myths people hold that lead them to select litigation as the intervention of choice and enumerate the many destructive outcomes that arise through using this approach.

It is our view that most people choose to litigate their divorce because they hold unexamined assumptions about what litigation involves and what they think they can get out of it (usually based on wishful thinking lured on by an unscrupulous attorney like bait on a hook). Most people simply don’t know any better until its too late. By providing educational resources on this blog, it is our hope that people can come to make more informed choices about ways to proceed that are more likely to yield the best possible outcomes for their their family.

Our exploration of the divorce litigation system in the United States has revealed some deeply troubling systemic issues including absence of judicial oversight, routine disregard for due process and other constitutional rights, and a level of entrenchment and corruption that in some cases reaches criminal proportions. We are aware that allegations of conspiracy to kidnap under Title 42 of the U.S. Code where due process and other civil rights have been denied have been upheld in Federal court. Allegations of extortion through racketeering in family court involving collusion of judges, lawyers, custody evaluators, other professionals and sometimes the litigants themselves have also been upheld in Federal court under Title 18 (the RICO statute) of the U.S. Code. Most family law attorneys will tell you that judicial immunity precludes any basis for action against an unscrupulous judge. Not so under RICO. We will provide detailed information about these complexities as well, often through providing links to other websites where such matters have been explored in depth.

To add to the complexity of the arena in which divorce proceedings occur, we will show that mediation is not in itself, a silver bullet that can fix all these problems. We will provide documented evidence that rather than being a single, identifiable process, people call a number of very different approaches to dispute resolution mediation. Many attorneys, for example, who say they do mediation actually conduct settlement conferences instead. Here at Lasting Agreements Mediation, we hold that these settlement conferences in fact do not constitute mediation- or at least, since there is no universally agreed standard as to what constitutes mediation (which is the reason behind the disparity), it would be safer to say that settlement conferences are not a good example of mediation at its best. The various forms of intervention that fall under the rubric of mediation have a variety of outcomes some of which yield far more satisfaction than others. At its worst, collusion, conspiracy and corruption have been found among mediators as well. You may know someone who has had a bad experience with mediation- and there are many. These people might advise you to get a bulldog lawyer because in their experience, in an effort to reach a compromise, mediators bargain away the store. We acknowledge and regret that this approach to mediation occurs in the marketplace however this doesn’t mean that all approaches to mediation are a gateway to nowhere- or worse.

On this site, we offer an approach to mediation that we think pushes the envelope in a useful direction that can benefit families. Rather than considering mediation as a form of dispute resolution, we find it more useful to structure it as a facilitated design project. We advocate a shift in the socio-economic context in which divorce mediation occurs from a single bottom-line profit driven motive to a triple bottom line ethic that promotes care for people, care for the social and natural environment (living systems) and equitable distribution of resources.

To operationalize this triple bottom line ethic, we follow a set of design principals as we work with you to design the best possible two-household family for the benefit of your children. The first principal, which is often overlooked, is to observe and interact, We will work with you to identify your family’s essential needs, and the resources available to meet those needs. We will help you identify and analyze the energy flows that occur within and around your family (what is accomplished with money is one example of a set of energy flows; gifts of time from within your family as well as extended family members, friends and neighbors are another). We will help you be mindful to avoid wasting energy by maximizing the benefits of these energy flows in order to obtain the highest yield for minimal expenditure of energy and other resources. That is, we will help you to design a plan to actually get your needs met as efficiently as possible. Our clients typically discover that when each of the childrens parents collaborate to figure out creative ways for everyone in the family to get their needs and other interests met it is easier for each individual to get their particular needs and interests met. Examples of needs and interest often include control, influence, well-being and many others. At Lasting Agreements Mediation, we can help you and your family accomplish this through a collaborative rather than an adversarial approach. Think of your two-household living system like an ocean-going vessel. Which vessel would you rather travel on, one where the designers and builders worked together to brainstorm the best possible vessel or one where the designers and builders were constantly arguing with each other and strong-arming or manipulating each other in an all out effort to make sure each person got their way? Do you really think you can build the best possible ship through a my way or the highway approach? Attorneys are not interested in building ships. They’re interested in winning arguments.

We encourage people seeking a divorce to use and value renewable resources and services and to produce as little waste as possible. When you are transitioning form a one-household family to a two-household family, the cost of living usually goes up while available resources remain what they were when everyone lived in one household. If we keep an eye on structuring the new two household family as efficiently as possible it may be possible to maintain the standard of living you are accustomed to even though your expenses may be higher. Our approach to helping you design this new two-household family is to design from patterns to details- that is first we help you work out the big picture then we help you work out the details later. If you find yourselves getting stuck on some detail, it is okay to set that aside for a while and come back to it later after you have put together a few other pieces of the puzzle. Part of this involves what we call integrating rather than segregating or stacking functions. In nature, every organism in a living system has more than one function and every function in a living system is accomplished by more than one organism. With this kind of redundancy, if there’s a breakdown in the system, what needs to happen still happens: an unexpected crisis wont break the living system you created. This principal of redundancy works for human systems as well by increasing resiliency to harm from unexpected events. It is important to build resiliency into your two-household design to help manage crisis situations with grace and ease. Establishing backup childcare arrangements, savings plans, health and life insurance are just a few ways to build needed resiliency into your new two-household family system.

We encourage you to use small and slow solutions in your two-household living system design. Well show you how. This is a critical time for your family. By attempting to keep the parts of your life that worked more or less okay as close as possible to what they were, it is less likely that you will be facing unexpected crises compared to what might come down the pike if large and potentially risky changes are made. The problem with big changes is that unforeseen, unintended consequences that might be harmful tend to also be large. Small and slow solutions means small and slow unintended consequences. This makes life easier to manage. One of you might be dying to move to France but there is usually wisdom in putting this off for a while until you settle in to your new situation. If France is in the cards, France will come in its own time but you may find you want to take your childrens needs and interests into account as you design this.

We encourage you to be mindful of and to use and value diversity. There is usually more than one way to structure and do things and available resources and energy flows can be used in multiple ways. Rigid, inflexible structures are more apt to break than structures that can bend when the winds of life come blowing against them. If you creatively use and  adapt to change, the two-household living system you design for your family is likely to be successful and satisfying now and far into the future. This is why we are convinced that the agreement the two of you work out with our coaching will be a lasting agreement.

You wont get such an outcome out of any courtroom. This we can guarantee.