2005 Summer, 60. Mediated Divorce Agreements Reconciling Equal Versus Equitable.

AuthorBar Journal Author - Attorney Karen J. Borgstrom

New Hampshire Bar Journal


2005 Summer, 60.

Mediated Divorce Agreements Reconciling Equal Versus Equitable

New Hampshire Bar Journal Volume 46, No. 2, Pg. 60 Summer 2005 Mediated Divorce Agreements Reconciling Equal Versus Equitable Bar Journal Author - Attorney Karen J. Borgstrom

Imagine for a moment a divorcing couple. Mr. and Mrs. Conflict have been married for 20 years. They have two children approaching college age. They both have been attentive and caring parents despite their vastly different parenting styles. Their separation has been marked by anger and a lack of communication. They have consulted with attorneys who have mentioned mediation as an alternative to litigation, but the attorneys have each advised their potential clients that, because of their particular circumstances (see accompanying Fact Pattern), mediation is not likely to be successful and that they could probably "get more" through litigation. Neither Mr. nor Mrs. Conflict is enthusiastic about trying mediation. Their mutual fear of the financial costs of litigation, however, has motivated them to try it.

Using Mr. and Mrs. Conflict as a case study, this article will focus on when, why, and how mediation can be the most effective method of addressing the numerous issues found in marital cases. Whether such issues are practical or perceived, emotional or financial, mediation is often the only time during the divorce process when a couple can sit together at a table, discuss all of their issues and determine for themselves what is fair. This article will examine how mediation can assist the parties in understanding their conflict and help to transform the conflict by addressing each other's needs and concerns. While litigating these cases may provide warring couples with a perceived need for their "day in court" the reality for litigants in family matters is that the court process, restricted by statutes and rules, falls short of their expectations for use as a weapon for "lesson-teaching" their spouse. At the end of the day, a client who wishes to punish his or her spouse via pronouncements from the bench will surely be disappointed. Worse still, the court order is unlikely to address the underlying issues of trust and communication between the parties, leaving the door wide open for ceaseless post-divorce litigation which never addresses the unresolved communication and trust issues.

Moreover, while the court has discretion, as a court in equity, to make decisions which allow for an unequal distribution of assets, it begins its evaluation of the case with the statutory presumption that "equal is equitable."(fn1)

There is no such presumption in a mediation. The parties are free to contemplate how to address all of their issues, and to consider how matters of child custody, child support, spousal support (alimony) and the allocation of assets and debt can be resolved in the most equitable manner in relation to their specific circumstances, considering their underlying issues of trust, communication, financial integrity and, perhaps most importantly, their own sense of fairness. A good mediator can help the parties to explore those issues and to assess what makes the most sense for them.

As noted by Jonathan M. Hyman, and Lela P. Love in their article on "Justice in mediation",

The practice of mediation is deeply attuned to issues of justice. To one unfamiliar with mediation, it might seem that mediation marks a flight from justice, a move to crude compromise or the abandonment of rights for the sake of making peace or saving time or money. On the contrary, mediation brings to the fore the perennial questions of justice: Has there been a wrong (or several wrongs) and what is the fair correction that provides a just measure for the kind and degree of harm done? What is a fair and just distribution of the resources available? How can stability and community be restored in light of the wrong? What should a mediator do to try to assure that the process itself remains just? Mediators like judges and arbitrators must attend to these issues.(fn2)

Attorneys and judges accustomed only to the adversarial model may be skeptical of how a mediator can assist the parties in achieving a just result in a particular case. However, attorneys and judges who are conceptually open to re-evaluating their views of "fairness" and who are willing to set aside their biases in favor of litigation will be amazed at how mediation can transform an often intractable, seemingly irresolvable conflict into a paradigm for successful resolution created by the parties themselves. In mediation, justice is not created by having the mediator act as a "pseudo judge."(fn3) It is not the responsibility of the mediator to determine the appropriate remedy. Rather, it is the parties who are empowered to determine the remedy themselves. "The mediator must attend to the process, help the parties recognize the legitimacy of different perspectives of justice, and work towards a resolution that comports with the parties' views of a fair and acceptable outcome."(fn4)

This author recently interviewed two leaders in the field of mediation in New Hampshire. Gregory T. Martin, a family law practitioner and a New Hampshire(fn5) Certified Marital Mediator whose practice is located in Keene and Peter Wolfe(fn6), Clerk of the Sullivan County Superior Court, and an outspoken supporter of, and innovator in, the creation and integration of mediation programs into the New Hampshire courts.

Wolfe, describing the difficulties that attorneys and judges sometimes face with the concept of mediation, believes that the traditional statutory view of an equal split being equitable is hard to overcome.(fn7) Combined with the societal perception of what is "fair" attorneys' and judges' views of fairness as an equal division often leave no room for the parties to assess what is fair in their unique circumstances. (fn8) Aggravating an attorney's biases further is a fear that any recommendation that results in a client agreeing to something less than equal could result in a malpractice suit against the attorney. An attorney may feel that such a recommendation will not be viewed a "zealous advocacy" when, in fact, it is just that.(fn9) Moreover, societal and reputation pressures that money equates to fairness and to a successful outcome distort the attorney's objective view of the needs of his or her client in a particular case.

As Peter Wolfe noted, attorneys traditionally were called "counselors," but we seem to have forgotten that role in favor of zealous advocacy at any cost, even when it may not make sense for a particular client in a particular case. Part of the problem, too, in Wolfe's view, is that attorneys are not listening to their clients as attentively as they should. Without fully eliciting and understanding from the client's perspective what is important and why it is important, an attorney cannot "counsel" the client as to whether an equitable rather than equal agreement makes the most sense.

Think back to our case study of Mr. and Mrs. Conflict and ask whether it makes sense to have Mrs. Conflict stay in the house. Recall that Mr. Conflict runs his business from the home, but Mrs. Conflict is currently residing there with the children. Both Mr. and Mrs. Conflict have had an equal role in their children's lives. In a traditional case, both attorneys would advocate for their client to be able to reside in the marital homestead: the attorney for Mrs. Conflict on the basis that the children should stay in the home and not be uprooted; and the attorney for Mr. Conflict on the basis that his client should not have to relocate his business, and that and he can manage the children as competently as his wife can.

What if, though, the attorney for Mrs. Conflict asked the following question of Mrs. Conflict: "Since you are concerned about Mr. Conflict's driving with the children when he is drinking, would it make you more comfortable if Mr. Conflict lived in the house during his time with the children and you drove with the children to and from the marital homestead to your new home to cut down the drinking and driving risks?" "Furthermore, Mrs. Conflict, Mr. Conflict's business is based in the home. Do you think it makes sense for him to reside in the home and for you to locate an alternate residence?" Such a question from an attorney encourages problem- solving and moves beyond the analysis of what an attorney can "get" for his or her client to what the client needs.

While it is part of the attorney's role to be aware of what his or her clients need or want, many attorneys feel constrained by strategic and structural barriers in practice, which can preclude consideration of their clients' practical issues in a non-legal framework. Can or should an attorney try to address the concerns a client expresses that may run counter to the attorney's own view of what he or she should attempt to secure for his or her clients?(fn10) This is, as yet, an unanswered question, but the solution is available if attorneys will consider it. In a mediation setting, the mediator can help the parties thoroughly examine the facts and circumstances of the family's specific situation and assist them in determining whether there is a solution that could provide a "win-win" solution for all of the parties.

A Win-Win Solution

What would a...

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