Abstract
How a mediator will conduct divorce mediation—the procedures he will employ and the style that he will adopt—are in large measure a function of the answers that he gives to the following questions: (1) What is the problem that has brought the couple to mediation? (2) What is it that stands between them and a resolution of that problem? (3) How can a mediator aid in its resolution and what procedures would be most helpful for that purpose? and (4) What responsibility does the mediator have to each of the parties, to their children, and to the agreement they will ultimately sign?
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Notes
Roger Fisher and William Ury, Getting to Yes, (Boston, MA: Houghton-Mifflin, Co., 1981).
Lewis Browne Hill, On Being Rather Than Doing in Psychotherapy, 8 Int’l J. Group Psychotherapy 115 (April, 1958).
There will be some who will object to the suggestion that it is appropriate for a mediator to attempt to aid the couple here by providing them with a yardstick of what it could be expected that a court would or would not do, even assuming, as the example does, that the mediator in question is an experienced matrimonial attorney. Ironically, they will be the same group who are concerned that the parties may make decisions in mediation without being fully appraised of their legal rights. Their objection will be that it is not possible for the mediator to know this with any degree of certainty. Clearly, only one of two things is possible; either an experienced matrimonial attorney could know what it was to be expected that a court would or would not do, or he could not. If he could know this, then there is absolutely no reason to believe that this particular experienced matrimonial attorney would not know this. If, however, an experienced matrimonial attorney could not know this, then the law has failed to fulfill one of its most important functions, namely, to assist the parties in making decisions as to what is legally appropriate or inappropriate under the circumstances. If it fails in this respect, then in a very important sense it becomes irrelevant. To extricate themselves from this conundrum, those who object may fall back upon the argument that our legal system will provide the correct answer, but only if appropriate adversarial proceedings are employed. Unfortunately, the argument begs the question. A court of law will not provide the correct answer; the correct answer will simply be whatever the court decides. (Put another way, the couple will resort to the court not to get the correct answer but because there is no correct answer.) The law is thus invoked not to decide the dispute, but simply to end it. If that is the case, then even if it is important in some sense that legal principles be invoked to end their disagreement, there is no reason that the parties should be required to pay the very heavy price that is involved in invoking those rules in adversarial proceedings. On the contrary, it makes far more sense for them to sit down with an experienced lawyer who can provide them with the benefit of these legal principles without having to pay that price.
See, e. g., Christian v. Christian, 42 N.Y.2d 63, 365 N.E.2d 849, 396 N.Y.S.2d 817 (1977); Johnson v. Johnson, 67 N.C. App. 250, 313 S.E.2d 162 (1984); Stockton v. Stockton, 435 N.E.2d 586 (Ind. Ct. App. 1982); Merritt v. Merritt, 616 S.W.2d 585 (Mo. Ct. App. 1981).
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Marlow, L., Sauber, S.R. (1990). Conducting Mediation. In: The Handbook of Divorce Mediation. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-2495-7_10
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DOI: https://doi.org/10.1007/978-1-4899-2495-7_10
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