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Why Collaborative Family Law Beats Mediation

The Polyannas agree that mediation and arbitration are like the new age dawning. The cynics say the attorneys who rush to alternative dispute resolution are like rats leaving the sinking ship of our justice system. The truth lies somewhere in between.

There are distinct differences between the various types of alternative dispute resolution. These distinctions are frequently and insufficiently drawn. Arbitration which, in many ways, mimics traditional trial procedure, arguably provides a legitimate way to judge shop and sometimes a cheaper and more expeditious method for the disposition of a case. Counsel fees may be less, but the savings are offset by the cost of paying for an arbitrator.

Mediation is distinguishable from arbitration in that the parties choose to retain all authority for their own final decision making. This process is distinguishable from both arbitration, where the authority is delegated to an individual chosen by the parties, and court, where the citizenry has delegated the authority to a judge, paid for by the taxpayers.

Mediation is zealously advocated from the right by fathers' rights groups, who vociferously object to the payment of child support and alimony, and on the left by therapists and others, who hope for a kinder, gentler process. In the middle, there are many professionals who put on the mediator's hat as a way of marketing new services and developing a new source of revenue.

Those on the extreme left and right espouse mediation because they wish to escape the authority of the State, albeit for different reasons. For the fathers' rights, mediation advocates who try to dodge parental responsibilities, mediation presents a macho alternative, the ability to control their destiny and escape responsibility. Many therapists espouse mediation because they are afraid of authority and adverse to conflict. Mediation satisfies their need, whether conscious or unconscious, to be engaged in the process of controlling conflict. Many act like the adult, co-dependent children of dysfunctional families who, in attempting to control the abusive behavior of the couple they are mediating, replicate the dynamics of their role as a child with their parents.

There is a growing awareness that mediation is inappropriate in many circumstances, especially where there is physical abuse. In this author's experience, many mediated agreements are unfair to the less sophisticated and less informed spouse who frequently is more willing to compromise. Moreover, many mediators fail to understand the seriousness and consequences of verbal abuse as described in the book The Verbally Abusive Relationship by Patricia Evans. They do not understand the threats that occur in private, the deception, and the Agas lighting which demoralize and confuse a timid spouse.

Unfortunately, mediation does not protect the party who wishes to disengage from the other and escape face to face interaction with a hostile and perhaps abusive spouse. As a matter of fact, many mediators make people feel worse by making them feel guilty, because they cannot measure up to the mediator's often saccharine and sentimental expectations of the post divorce family. Mediation does little to move the parties through the stage of grieving necessary to establish psychological independence. Mediators do not recognize the intractable, often permanent, damage to the structure of the brain caused by high levels of stress and anxiety. The nature of this damage is reported by B. van der Kolk in The Intrusive Past: The flexibility of memory and the engraving of trauma in American Imago (1991); as well as in his article Inescapable shock, neurotransmitters, addiction to trauma: Toward a psychobiology of post traumatic stress in Biological Psychiatry (1985). It is further elaborated in Zager and Black's article Neuropeptides in Human Memory and Learning Processes, in Neurosurgery (1985). It is cruel to pressure those who have been traumatized or are confused and depressed to submit themselves to the source of their anxiety and abuse.

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Many proponents of mediation argue the benefit of being able to draft an agreement idiosynchratic to the parties. However, these detailed individual agreements may, in the long run, require more interaction and, thus, more friction. Also, they are difficult to enforce. Lawyers are frequently asked to correct botched mediated agreements or restructure an agreement the parties find to be cumbersome and difficult to execute over time.

It is these cases which prove that mediation is not always cheaper. The old adage that an ounce of prevention is worth a pound of cure should be remembered by those who wish to make a quick less expensive exit from a long marriage.

The economic benefit to professionals championing these two forms of alternative dispute resolution does not diminish the value of using these new forms in appropriate circumstances. However, the opportunity for financial security presented by these methods of conflict resolution should not be disregarded as a possible motivation for their promotion.

Mediators and arbitrators are generally paid by the hour, session by session, and, thus, have a more reliable source of income than many attorneys. Arbitrators may favor attorneys who select them by awarding them legal fees and guaranteeing payment. Do these arbitrators and cooperating attorneys have a built in conflict of interest which may exist to the detriment of the client? Should it be disclosed to the client Does membership in a private, non-representative association, which certifies its own members as arbitrators or mediators, qualify an arbitrator or mediator or simply promote or market the members of that association?

Recently, California has been the birthplace of a new form of alternative dispute resolution. That new form is known as Acollaborative divorce. It assumes that each party is represented by counsel and that they will negotiate a property settlement, as has been the case in the majority of divorces for decades. However, collaborative divorce differs in that the parties guarantee and sign a contractual agreement to insure fair and full disclosure, the elimination of unnecessary conflict over the children, and the utilization of other professionals such as, child psychologists and therapists, to manage the psychological needs of the parties and their children. This method is superior to mediation in that it guarantees full disclosure and emphasizes the needs of the children while protecting the parties from painful face to face communication. Moreover, it guarantees the input of lawyers who have the expertise to give tax, real estate, pension, and other necessary types of advice.

Query: What does it mean for democracy, the rule of law, due process, and the integrity of our judicial system when lawyers advocate for alternative dispute resolution by routinely bad mouthing our courts, and neglecting political and governmental policy questions? As a housekeeping matter, holding our judges and elected officials accountable is necessary tomaintain the integrity of our justice system. Could mediation be a symptom of the decay of democratic institutions? It is easier and less formal; but does it demonstrate the eternal vigilance which is required for the preservation of freedom?

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I conveniently represent clients in the Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties, the towns of Wayne, Radnor, Philadelphia, King of Prussia, Paoli, Devon, Berwyn, Newtown Square, Villanova, Bryn Mawr, Haverford, Ardmore, Lower Merion, Media, Wallingford, and Swarthmore, and throughout Pennsylvania.


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