Mediation is a big tent with room for a variety of mediators with different backgrounds, credentials and styles. There is no single type of background or set of credentials required for a mediator nor is there any one right style of mediation. While retired judges serving as mediators (“judge-mediators”) in family law cases has become somewhat the norm, there is a strong case for experienced family lawyers certified in family mediation by the Virginia Supreme Court (“lawyer-mediators”) to serve in the same capacity. Many are doing so successfully but without the same level of recognition.
The mediation groups consisting mainly of judge-mediators are due much credit in popularizing family mediation in Virginia. These groups have helped resolve many family law disputes, sparing family members a great deal of time and misery. Often, family lawyers select judge-mediators hoping the gravitas of the mediator being a former judge will impress the client and promote settlement. “They need to hear it from a judge” is a common refrain supporting this type of mediation.
The process of judge-led mediations, however, can often be restrictive. As a general rule, judge-mediators will only meet with represented parties and require counsel be present during all stages of the mediation process. The typical judge-mediator scenario begins with a pre-mediation call with counsel followed by mediation a few weeks later. The attorneys often will submit detailed written mediation statements to the judge-mediator in advance of the mediation. Mediation is usually scheduled for a full day or, in some cases, two or more full days if necessary. The day starts with a short joint meeting of the parties and counsel and then shuttle diplomacy by the judge-mediator, presenting offers and counteroffers to the parties in separate rooms with their counsel. This can sometimes start out as a slow process but often results in an agreement in principle, a term sheet or a fully executed agreement. Sometimes, even after an agreement is reached, participants report negative feelings about their mediation experience – expressing feelings that they were unheard, rushed, pressured, dismissed, misunderstood, and/or felt important issues were not addressed.
Mediation with a lawyer-mediator does not have to be done on a compressed timeline of one day or two consecutive days. It may be a series of meetings of two or three hours each spread out over several weeks or longer, if needed, for the parties to obtain necessary information or to meet with counsel or experts to consider offers or formulate counteroffers in a more relaxed setting. If requested, though, lawyer-mediators can also use the same format as judge-mediators, having all-day mediations with counsel present.
Many lawyer-mediators are comfortable mediating with the parties alone or with counsel present. Lawyer-mediators are accustomed to meeting directly with parties whereas a retired judge, by nature of being on the bench, has not had the same opportunity for direct contact with parties other than asking clarifying questions or directing a party on how to answer a question. Lawyer-mediators, as a result of interacting with clients on a daily basis, have honed their skills of listening, empathy, creative thinking and problem solving. This is not to say that judge-mediators do not have these skills, but judges are required to strictly adhere to a set of rules and manner of conduct in a courtroom, often communicating in a very formal manner and limiting their resolutions to what the law permits.
Many family lawyers are accustomed to the judge-mediator style of shuttle diplomacy and may be uncomfortable being in the same room for an extended time with the mediator, the parties and opposing counsel. There are, however, several advantages to the parties and their counsel remaining together, at least for some significant time, while mediating.
One advantage is that the parties hear each other directly and are not depending on the mediator to convey information accurately. There is not the inherent suspicion by the parties of “what happened in the other room” when the judge-mediator was with the other party and counsel. Parties hear directly from each other and can determine the other party’s sincerity, motives or intent for themselves. Remaining together in the same room also allows the parties to brainstorm solutions, an option not available in shuttle diplomacy. The parties, directly or through counsel, can also ask questions in real time, although this process allows a party and his/ her counsel to confer privately whenever needed. Also, having the lawyer-mediator, as a neutral third party, draft the final agreement removes the suspicion of bias often associated with one party’s counsel drafting the agreement. Finally, it is beneficial in cases where the parties are on a limited budget. It is a real cost savings for the mediator to meet directly with the parties, with counsel in an advising role – as opposed to having three billable people being in an eight or ten-hour (or longer) marathon mediation session.
Lawyers often want both judge-mediators and lawyer-mediators to be evaluative if they have a recalcitrant client or are dealing with difficult opposing counsel. Both judge-mediators and lawyer-mediators have occupational hazards in this regard. Lawyer-mediators may not have an appreciation of the proverbial “view from the bench” that judge-mediators have, although some lawyers do serve as substitute judges, commissioners in chancery and special magistrates. Likewise, a judge-mediator only knows how he or she would rule when asked to be evaluative. They have only been in one courtroom for the last 10 or 20 years – their own. They have not sat in the other courtrooms to see how their colleagues rule. Lawyer-mediators typically are experienced family law litigators and have been in front of the judges in their local jurisdictions many times. They know the sitting judges’ tendencies and the likely range of results if the matter were to go to trial. This “battlefield” knowledge helps in settling a case in mediation since it gives the parties some parameters as to likely litigated outcomes. Knowing this range of possibilities in a local jurisdiction is valuable, especially in cases where the judge has broad discretion, such as in spousal support and custody matters, or where there are a number of judges sitting in one jurisdiction.
Another difference between judge-mediators and lawyer-mediators is the use of remedies. When judge-mediators were on the bench, they could only use remedies allowed by Virginia law. Alternatively, family lawyers are familiar with a variety of remedies in marital settlement agreements which are not prescribed by statute or case law. Examples of this include: (1) using a base amount of monthly support coupled with a percentage of the payor’s variable compensation when determining spousal support, (2) terms commonly used when one party remains in the marital home for an extended time to allow a child to finish middle or high school, or (3) creative solutions when a family business is a major asset and both parties are necessary in the running of the business. This can allow for a more tailored and creative approach to resolving family law disputes. Lawyer-mediators also know which “creative solutions” may not work particularly well, based on the experiences of their former clients and may be able to point out nuanced pitfalls and unintended consequences of certain proposals. Again, not that judge-mediators cannot come up with these types of solutions or anticipate the failures of those same solutions; it is just that lawyer-mediators are more accustomed to drafting these provisions and can be of value in “pressure testing” them.
The mediator’s background can be another difference. Many judges retiring from the bench and training as mediators specialized in areas other than family law before they went on the bench. They may have made a name for themselves as a prosecutor, public defender, corporate lawyer or insurance defense counsel. They may have only learned family law on the bench and may not have the experience that family lawyer-mediators have dealing directly with clients who are in the throes of a high-conflict divorce. Being a family law practitioner brings a strong sense of understanding of what clients are going through, be that a difficult custody case or the dissolution of a long-term marriage. This is not to say that judge-mediators cannot understand this; it is just that they may not have had extensive “ground level” experience prior to becoming a mediator.
Lawyer-mediators have also usually forged relationships with other local lawyers. Judges and lawyers may have good relationships with each other, but sitting judges understandably must maintain very clear boundaries with lawyers who appear before them. Lawyers, on the other hand, get to know each other well after having cases with each other over many years, and sometimes decades, as well as serving together on bar committees. These lawyer-to-lawyer relationships often produce professional friendships as well as mutual trust and respect. A lawyer-mediator with this type of trust with counsel for the parties can become critical, especially in high-conflict divorces or resist/refuse custody cases.
Finally, lawyer-mediators may be more attuned to outside resources for the parties. For example, as a result of practicing in the field, lawyer-mediators may have greater knowledge of resources such as parenting coordinators, family/child therapists, specific knowledge of tools such as Our Family Wizard or Soberlink, as well as knowing trustworthy business valuation experts, real estate appraisers, vocational counselors and the like.
There is no doubt that judge-mediators are and should remain a viable option in resolving family law disputes. However, lawyer-mediators bring a unique and valuable skillset to the process, as well. They may also offer options not currently being used in judge-mediation settings. With the growing use of mediation in family law, having mediators with diverse backgrounds and approaches can only benefit parties going through a family law dispute.
