When Divorce Mediation Undesirably Breeds More Litigation

• Publication year: 2022

When Divorce Mediation Undesirably Breeds More Litigation

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by Tom S. Tanimoto and P. Gregory Frey

In no uncertain terms, and without question, mediation is an effective and powerful alternative dispute resolution tool, available to litigants and their respective legal counsel. It has a proven and longstanding track record of circumventing, truncating, or ending what can often be years of costly, time-consuming, and stressful litigation. Fruitful mediation, even if only partially successful, limits opportunities for in-court jousting, mediation not only fails to treat or cure the "ailment", but leads to serious, albeit unintended, side effects and unfavorable results.

For example, while there will always be party litigants who unwaveringly demand their day in court (as is their right), in extreme cases, they will refuse to mediate, or begrudgingly do so, in bad faith, only because they are ordered to participate, all while advancing, wholly unreasonable and untenable positions which they believe thereby promoting, and hopefully, perpetuating positive relations between the party litigants, during a case, at its conclusion, and beyond. See In re marriage of Duffy and Pilny, 718 N.E.2d 286, 291 (Ill. App. 1999) (stating that "Mediation preserves the resources of the parties . . . and does not pit the parties against one another."). More importantly, productive mediation preserves scarce and already far-overtaxed judicial resources.

The United States Supreme Court declared that "[t]he concept of mediation is the antithesis of justiciability." General Committee of Adjustment of Brotherhood of Locomotive Engineers for Missouri-Kansas-Texas R.R. v. Missouri-Kansas-Texas R. Co. et. al., 320 U.S. 323, 337 (1943). Relatively (and figuratively) speaking, we posit that litigation is akin to an ailment, and mediation is the treatment, if not, the cure for that all too prevalent ailment.¹

As discussed herein, to no surprise, courts in large part view mediation glowingly, albeit tempered at times with hints of guarded optimism, due to fact that there will always be cases that cannot be settled. Oftentimes, it is because the parties are just "too far apart."² There are also times when mediation is procedurally, inappropriate or premature. Sometimes, however, to be "just the opposite." The almost inevitable consequence of individuals who strictly adhere to such narrow and constrained views of the legal process and how it should work (for them) is the obliteration of any notion of alternative dispute resolution.

The confluence of all the above portends an escalation of litigation,³ which is one topic of this article - and nothing could be worse than litigants unnecessarily expending extensive resources (i.e., time, energy, and money) on both mediation and litigation, literally at the same time, only to fail at the former, and be forced to contend with the latter.

Such escalation may be more prone to occur in the family law arena by and between divorcing parties because they are unlike litigants in other types of civil cases where parties are more often than not, at arm's length and unrelated, thus not nearly (if at all) as emotionally and psychologically invested. By contrast, divorce cases, by their very nature, can involve personal, hand-to-hand combat (so to speak), replete with bone-chilling allegations proffered by individuals driven by the most visceral of

human emotions, including, but not limited to, jealousy, despondency, anger, and, often, an utter feeling of loss and despair. This article will focus on the many problems, difficulties,

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and challenges which may arise, perhaps more often than not, in divorce mediations. This reality is particularly relevant to Hawaii family law attorneys because mediation is by court rule virtually mandatory. See Haw. Fam. Ct. R. 94, discussed infra. Mediation, as a case prerequisite, creates an increased and heightened responsibility for the divorce lawyer to be fully informed in order to proactively and effectively counsel, educate, advise, and likewise, fully inform his/her client on all the many facets and nuances of mediation, aside from simply motivating them to engage and meaningfully participate in such. This discussion must include the pros and cons of mediation, (i.e., what can go right and what can go wrong) which this article will offer for the reader's consideration.

Section I of this article will introduce to the reader, the pervasive, nearly mandatory role that mediation plays in Hawaii divorce cases, as provided by Haw. Fam. Ct. R. 94. Section II (and other sections which follow) set(s) forth some of the optimistic views held, if not fully embraced, by courts to confidently make the point that mediation is a viable and historically useful resource to settle cases, and that therefore, it should, if not must, be utilized. Section III discusses Haw. Fam. Ct. R. 53.1 that sets forth factors that a court might consider, such as costs, selection of a mediator, and the procedural posture of the case before ordering a case and party litigants to mediation. Sections IV, V and VI herein present selected and problematic scenarios which may arise prior to, during and upon the conclusion of mediation. Along the way, as mentioned, we will present commentary and suggestions that may be useful to prepare a client (if not his/her counsel as well) to adopt and positively embrace all aspects of mediation (instead of stubbornly resisting or defying it) and thereby safeguard or mitigate against (mis)con-duct that could lead to problems and impose obstacles in the proceeding.⁴ Section VII will conclude this article with some final thoughts and takeaways, i.e., lessons to learn.

I. DIVORCE MEDIATION IN THE HAWAII FAMILY COURT

Haw. Fam. Ct. R. 94(a)(1) requires any motion requesting a divorce trial setting to certify that "the movant's declaration that a bona-fide attempt to settle the issues in said case has been made, that mediation has been attempted or is inappropriate for reasons specified in said motion, and that these efforts have been unsuccessful[.]" Id. While the rule does not per se mandate mediation, such is practically, if not absolutely the reality, especially in the First Circuit of the State of Hawaii, which is comprised of the county of Honolulu, Island of Oahu. It is fair to say that First Circuit Family Court judges will invariably decline to set a case for trial, unless and until, good faith mediation is initiated and attempted. "Back in the day," this requirement was customarily satisfied with a "4-way" informal meeting amongst the parties and their respective counsel. Today, such an attempt is insufficient, as the parties must engage in formal mediation to its completion, by virtue of a declared impasse, or (partial) settlement.

There is a statutory exception to the mediation "requirement" in the context of domestic abuse or violence, as set forth in Haw. Rev. Stat. §580-41.5(a), which provides that "[i]n contested divorce proceedings where there are allegations of spousal abuse, the court shall not require a party alleging the spousal abuse to participate in any component of any mediation program against the wishes of that party."⁵ Subsection (c) reads similarly, but it applies to instances where there is an active restraining order or Order for Protection in effect.⁶

In light of this virtually mandatory mediation framework set forth in Haw. Fam. Ct. R. 94, all divorce clients, save those eligible for the above-discussed statutory, domestic abuse exception, should be counseled and thoroughly educated, from and during the infancy of the case, as to the reality that good faith mediation must be attempted prior to setting a matter for trial, and failing that, the court will nonetheless, almost certainly order such, pursuant to its authority under Haw. Fam. Ct. R.53.1, discussed in more detail infra.

II. A POSITIVE JUDICAL VIEW OF MEDIATION

"With the heavy caseloads shouldered today by federal and State courts alike, mediation provides a vital alternative to litigation. The benefits of mediation include its cost-effectiveness, speed and adaptability. Experience has shown that even where parties believe that there is no possibility of settlement at the outset of mediation, they may change their minds during the process. Therefore, while the court cannot force litigants to settle an action, it is well established that a court can require parties to appear for a settlement conference." Small v. New York, 12-CV-01236-WMS-JJM at 2, (WD. N.Y 2015). The Small court's broad sweeping praise of mediation is rightfully the promotional centerpiece of any "career" mediator's advertising brochure.

In furtherance of mediation's positive attributes, we submit that it also has a utility that transcends the mere generation of a settlement agreement. Custody cases (by their very nature) implicate a child's well-being and happiness, and that, along with the child's needs and best interest, in some cases, can easily transcend the reach and scope of a judicial decision.⁷ However, a mediated agreement is only limited by the creativity and sophistry of the parties, and it is wholly different from a trial decision which can then be appealed, thereby protracting the conflict.⁸ A court's ruling must also be based on the evidence presented at a trial, while mediation does not. Indeed, sometimes the law is ill-equipped to do justice to a set of circumstances as there can be fact patterns where a trial decision is insufficient, if not ill-equipped, to address

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the problems at hand. T.C.M. v. W.L.K.. 237 So.3d 238, (Ala. Civ. App. 2017) is one such example of a very difficult and highly litigated custody/adoption proceeding⁹ (on appeal) where Judge Thompson, in a concurring opinion, directed to the parties, what can be characterized as nothing short of a plea for diplomacy and a cease-fire to current, and what is likely to be further legal hostilities.

Moving forward with this

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