Abstract
What obligation does the mediator have to assure that the agreement concluded between the parties is fair? Critics of divorce mediation have been quick to raise this question. The mediator’s obligation, they charge, is simply to conclude an agreement between the parties. Thus, it is the fact of the agreement and not its quality that most concerns him. For lawyers who have functioned in a more traditional adversarial setting, therefore, the cost of the benefits of a mediated settlement may be an agreement that is unfair to one of the parties, usually the weaker one. From their standpoint, without the presence of separate lawyers to champion each of the parties’ conflicting interests, and thereby protect them, there is little likelihood, let alone any guarantee, that the resulting agreement will be fair.
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Richard E. Crouch, Divorce Mediation and Legal Ethics, 16 Fam. L. Q. 228 (1982).
This was expressed by a well-known matrimonial lawyer in the following words, “I am in the business to win.... once I have been hired,... my sole aim is to gain victory. And in doing so, I will do anything and everything I think necessary to serve the interests of my client, to achieve his purpose—to gain him a divorce in which he will come out financially, psychologically—in every way—on top. That is what I have been hired to do and if in doing it I appear cold and calculating..., then that’s the way it has to be. I am tough because I assume the lawyer who opposes me will also be tough.... When I take a case, I am not concerned with whether my client is right or wrong. As far as I am concerned, a client is always right.” Raoul Felder, Divorce—The Way Things Are, Not the Way They Should Be, (New York, NY: World Publishing, 1971), at 1–2.
To be sure, judges are often called in before, and sometimes during, the trial, in an effort to help effectuate a settlement. But, and as any practicing attorney will attest, a judge is invariably more concerned over the fact of a settlement than he is in the quality of that settlement. By definition, he does not have all of the facts that the trial will reveal, as there has not been a trial, or at least not a completed one. He is thus not in a position to make sound, reasoned judgments. What he attempts to do is simply to get the parties to compromise and settle their differences and the device that he principally uses is that of banging heads together. Thus, and contrary to common mythology, the judge to whom we look as the safeguard of the system is, ironically, actually more interested in getting it done than in getting it right.
If this example seems somewhat fanciful, the reader is reminded of the contract entered into between Jacqueline Kennedy and Aristotle Onassis prior to their marriage, as reported by Christian Cafarakis, in his book, The Fabulous Onassis—His Life and His Loves, (New York, NY: William Morrow & Co., 1972), starting at page 110.
Although there are admittedly no published statistics concerning this, a number of mediators working in the private sector have corroborated the fact that clearly a majority of the divorces with which they have been involved were initiated by the wife. That is our experience as well.
This will be discussed at greater length in Chapter 7, Context.
In defending New York’s Equitable Distribution Law against critics who have taken issue with whether or not it is fair to women, Henry H. Foster, Professor Emeritus of Family Law at New York University’s Law School, stated, “The New York Equitable Distribution Law (EDL), which has been in effect since July 19, 1980, was the subject of extensive study and debate by members of the legislature and numerous bar association committees during its seven-year incubation period. The final draft was the result of compromise, give and take, and represented what was legislatively possible at the time. The EDL was not written in stone and indeed, some of its provisions may need clarification and change.” A Second Opinion: New York’s EDL is Alive and Well and is Being Fairly Administered, 17 Fam. L. Rev. 3 (N.Y. State Bar Assoc, Apr. 1985), (emphasis added).
La. Civ. Code Ann. art. 160 (West 1987 Supp.).
Mich. Comp. Laws Ann. ∫ 552.23 (West 1967 & 1987 Supp.).
Lapidus v. Lapidus, 226 Va. 575, 311 S.E.2d 786 (1984).
N. Y. Domestic Relations Law, ∫ 236 (McKinney, 1986).
Gordon v. Gordon, 10 F.L.R. (B.N.A.) 1473 (Del. Farn. Ct. 1984).
Anderson v. Anderson, 368 N.W.2d 566 (N.D. 1985), rev’d on other grounds, 390 N.W.2d 554 (N.D. 1986); Winter v. Winter, 338 N.W.2d 819 (N.D. 1983).
N. J. Stat. Ann. tit. 2A, ∫ 34-23 (West 1952 & 1987 Supp.).
Ill. Ann. Stat. ch. 40, para. 503(c) (Smith-Hurd 1980).
Ala. Code, ∫ 30-2-52 (1983 & 1986 Supp.).
Mo. Ann. Stat. ∫ 452.330 (Vernon 1986).
Brundage v. Brundage, 100 A.D.2d 887, 474 N.Y.S.2d 566 (2d Dept. 1984) (citing N.Y. Fam. Ct. Act ∫ 413 (McKinney 1983)).
Grapin v. Grapin, 450 So.2d 853 (Fla. 1984); Keenan v. Keenan, 440 So.2d 642 Fla. Dist. Ct. App. 1983).
Tex. Fam. Code Ann. ∫S 3.59, 4.02 (Vernon 1987 Supp.). See also, Price v. Price, 591 S.W.2d 601 (Tex. Ct. App. 1979).
Pa. Stat. Ann. tit. 23, ∫ 501 (Purdon 1987 Supp.).
Wash. Rev. Code Ann. ∫ 26.09.090 (West 1986); see, Mason v. Mason, 40 Wash. App. 450, 698 P.2d 1104(1985).
Neb. Rev. Stat. ∫ 42-395 (1984); see, Earl v. Earl, 221 Neb. 574, 379 N.W.2d 261 (1986).
Utah Code Ann. ∫ 30-3-5 (1984 & 1987 Supp.).
Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527 (1982).
Wisner v. Wisner, 129 Ariz. 333, 631 P.2d 115 (1981).
O’Brien v. O’Brien, 66 N.Y.2d 576, 489 N.E.2d 712, 498 N.Y.S.2d 743 (1985).
Moritz v. Moritz, 10 F.L.R. (B.N.A.) 1534 (Pa. Ct. Comm. Pleas 1984).
James v. James, 248 S.W.2d 706 (Ky. 1982).
Rubin v. Rubin, 204 Conn. 224, 517 A.2d 1184 (1987); Gregg v. Gregg, 510 A.2d 474 (Del. Super. Ct. 1986); Hashimoto v. Hashimoto, 725 P.2d 520 (Haw. Ct. App. 1986); In re Marriage of Meredith, 394 N.W.2d 336 (Iowa 1986); Burke v. Burke, 733 P.2d 133 (Utah 1987).
Gassaway v. Gassaway, 489 A.2d 1073 (D.C. 1985).
While, as a general rule, it is normally the number of children that the two of them have together, it would also include any children that the husband had by a prior marriage.
N.Y. Est., Powers, & Trusts Law ∫ 4-1.1(a)(1) (McKinney 1981 & 1987 Supp.).
In New York, the only exception to this is where a party is deemed to have abandoned his or her obligation to the other party completely, in re Lamos’ Estate, 63 Misc. 2d 840, 313 N.Y.S.2d 781 (1970). See also, N.Y. Est., Powers, & Trusts Law ∫ 5-1.2 (McKinney 1981 & 1987 Supp.).
In New York, for example, the Court is required to consider thirteen separate factors. Not only are the first twelve of these rather imprecise yardsticks to apply (e. g., number 6—“any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party”) but the thirteenth factor only compounds the problem by permitting the court to then consider “any other factor which the court shall expressly find to be just and proper.” N.Y. Dom. Rel. Law ∫ 236-B (McKinney 1986).
Prior to the enactment of its equitable distribution statute, if a wife in New York consulted with an attorney and showed him a deed to a parcel of property in her husband’s name, then, and with very minor exceptions (such as, for example, where she had previously deeded the property to her husband under circumstances that would suggest that a constructive trust should be imposed and he be deemed to hold it for her benefit), the lawyer could, with great assurance, advise the wife that she had absolutely no interest in the property. That might not have been fair, but it was certain. Today, and at least where the property was acquired by the husband during the period of the parties’ marriage, the fact that the property is in the husband’s name alone is totally irrelevant; and the circumstances of the couple’s marriage might be such that a court might well find that the wife should be given an interest in it. Unfortunately, and unless the property in question is the parties’ marital residence, the lawyer will be hard pressed to tell the wife exactly what her interest will be. In short, although the new law may well be fairer, to that very extent it is also far less certain (predictable).
Putting It All Together—The Family Law Curriculum, 14 Colum. L. Sch. Alum. Observer 6 (Oct. 1984).
This distinction is reflective of the very different attitudes—one might almost say views of reality—that are expressed by the law and in mediation. While, by definition, there had to be many legitimate ways in which most of the issues that were presented to the court under equitable distribution could be viewed—whether a spouse should have an interest in the other’s professional degree or license, his or her business, professional practice or retirement benefits, whether the appreciation is separate property should be considered marital property, etc.—and while different courts have come to very different conclusions on certain of these questions; once a definite decision has been made by the courts of a particular state, all other points of view are nullified and deemed without value. From that point forward there is one, and only one, correct way to view the situation. (It is akin to an electoral college in a presidential election completely discounting and ignoring the millions of votes that may have been cast for all but one of the candidates and assigning all of them to the candidate with the most votes). While it may be necessary to adopt such a win/lose attitude toward competing points of view in politics and in the orderly administration of justice, it represents, nevertheless, a distortion of reality. More importantly, it is not a distortion that mediation is necessarily required to adopt. Since a mediator is not concerned with the administration of justice or, therefore, the precedential effect of the determination in this case upon the determination in other cases, he is not bound to hold that what was done in a previous instance (what was right there) must be done here. Nor is he bound, even in this instance, to choose between these competing points of view. On the contrary, he has the ability, which a court does not, to recognize the validity of both of the points of view being expressed and to attempt to effectuate an accommodation between them.
See, e. g., John Lande, Mediation Paradigms and Professional Identities, 4 Mediation Q. 19 (June 1984).
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Marlow, L., Sauber, S.R. (1990). Is the Agreement Fair?. In: The Handbook of Divorce Mediation. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-2495-7_4
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