Continued from Part 1.

The type of mediation that Joan Kelly is referencing is facilitative mediation because evaluative mediation is an adversarial divorce process.

"Evaluative mediation is virtually identical to settlement conferences(link is external)presided over by judges. The mediator helps the parties resolve their disputes by 'judging' the legal strengths and weaknesses of each party’s case. Thus, the mediator focuses on each of the parties’ rights under the law. The mediator assists the parties in evaluating the case and analyzing the costs and benefits of reaching a mediated agreement at that time versus a judicial ruling at a later date. This model of mediation clearly requires the mediator to be involved in the outcome. For the mediator to be effective in this type of mediation, both parties (and their respective counsel, if represented) must perceive the mediator as having a great deal of knowledge and understanding of the law involved in their particular case." 

The following information is from the "Maryland Program for Mediator Excellence Mediation Descriptions":

"Committee Notes(link is external):

1) 'Evaluative Mediation' is not defined here because we believe it is a misnomer. Evaluation is a technique, not a mediation framework. If a process consists solely of an evaluation and attempts to get participants to settle in line with the evaluation, then that process is not mediation, it is more likely a settlement conference. In a survey asking Maryland mediators how they define their practice, no mediator responded that they define their practice with the term 'Evaluative.' 

2) A Settlement Conference is not mediation, although the two are often confused. We define settlement conferences here in order to try to clarify the distinction. Settlement conferences are ordered by the courts in a wide range of civil cases and attendance is mandatory. The conferences usually take place 30-days prior to trial.

Settlement conference neutrals are judges or lawyers who are familiar with the decisions of the particular court in which the case is filed. The conferences are focused on settling the lawsuit. The neutrals discuss with the participants the value range of their case and attempt to get the participants to reach an agreement, which may be a compromise. The conferences usually operate with attorneys present, and the entire process may consist of the neutral meeting solely with the attorneys. The process may take place in separate meetings with each side, as the neutral uses persuasive arguments, and attempts to encourage the parties to come to an agreement within a range of settlement options."

It bears mentioning that "Maryland has won national acclaim(link is external) for its multi-faceted approach to ADR as well as for the Maryland Judiciary’s leading role in helping to prevent disputes from reaching a stage at which court intervention is necessary."

On April 20, 2017, the Los Angeles Superior Court Family Law Division issued a press release announcing its Voluntary Settlement Project Pilot. It stated in pertinent part as follows: "The Family Law Division of the Los Angeles Superior Court(link is external) is excited to announce the launch of a pilot project which will provide an opportunity for those with family law cases to participate in court-sponsored Voluntary Settlement Conferences (VSC)."

Now, consider the following quote from the chair of the family law section of the Los Angeles County Bar Association had to say about the Pilot Project:

This pilot project will provide mediation(link is external) at an earlier point where there is the real possibility that the parties will still be able to protect and divide the assets which they have worked so hard to achieve and where there is the ability to protect their children from further acrimony of their parents, thereby allowing our Courts to do what is in the best interest of our children. By providing trial judges as mediators for these families, there is the real possibility for settlement, especially when the litigants will be hearing from judges who actually hear all of their similar issues on a daily basis.” 

Notice that the chair of the family law section of the Los Angeles County Bar Association is referring to a settlement conference as mediation and trial judges as mediators. To the extent that trial judges are mediators and settlement conferences are considered mediations, we're talking about evaluative mediators and evaluative mediation. This is important because none of the empirical support regarding the benefits of mediation pertains to evaluative mediation—quite the contrary.

Moreover, Joan Kelly referred to “well-trained and experienced mediators.” Do judges become "well trained and experienced mediators" by virtue of being judges?

Consider the following quote from an article titled "Is Mediation Expertise What You Need?" that was published by Harvard Law School's Program on Negotiation on May 31, 2016: "You can be forgiven for thinking that(link is external), when it comes to dispute resolution, technical expertise trumps mediation expertise. This reasoning is faulty."

As a matter of fact, "Negotiation Research on Mediation Techniques: Focus on Interests," which was published by Harvard Law School's Program on Negotiation on March 21, 2017, set forth the following: 

"From experience we know that a skilled mediator(link is external) can often resolve conflicts even when she knows little or nothing about the underlying technical issues  behind the most complex disputes.


In the first place, a good interests-based mediator will be a fast learner, capable of quickly picking up the technical mediation knowledge necessary to discuss the problem.

More importantly, an interests-based mediator doesn’t need to fully understand the technical aspects of a problem to assess why the dispute is important to each party and which solutions each party might accept.

By beginning with this knowledge and eventually exchanging negotiated agreement proposals, the interests-based mediator can help parties resolve the most complex technical problems."

So, I'm going to ask again, what training have judges received that makes them "well-trained and experienced mediators"?

You might be thinking that possibly lawyers are not advising their clients of the benefits of facilitative mediation because they are unaware of that information. I wish that were true. However, I've been publishing articles on this topic and sharing some of those and other articles with the members of the family law section of the Los Angeles County Bar Association for years through its listserv. In fact, I shared the article, "Mediation: Negotiating a More Satisfactory Divorce" on that listserv the day before information on the Pilot Project was shared on that same listserv. Unfortunately, nobody responded at all. 

Willful ignorance is "the practice or act of intentional and blatant avoidance(link is external), disregard or disagreement with facts, empirical and well-founded arguments because they oppose or contradict your own existing personal beliefs." 

How comforting is it to know that attorneys people seek out to help them solve problems are willfully ignorant of the empirical evidence regarding the benefits of facilitative mediation, as opposed to an adversarial approach?

At this point, the best advice I can offer to people seeking wise counsel is to seek out "well-trained and experienced [facilitative] mediators" before retaining, or even consulting with an attorney. This is particularly true in the field of family law, where the empirical evidence regarding the benefits of facilitative mediation is so clear.

Mark B. Baer, Esq. is a mediator, collaborative law practitioner, conflict resolution consultant, co-author of Putting Kids First in Divorce, and co-founder of Family Dynamics Assistance Center. He also regularly writes for the Huffington Post and Psychology Today.