Abstract
Mediators do not generally give much thought to the place and function of legal rules in mediation. They know that the negotiations between the parties take place in “the shadow of the law,” to use the phrase coined by Mnookin & Kornhauser.1 They also know that these negotiations somehow involve legal rights and obligations that each of the parties have. Nevertheless, they view these legal rights and obligations as somewhat mysterious and beyond their understanding. As a result, they leave these matters in the hands of lawyers, and dutifully instruct the parties that they should each have separate counsel of their own choice to advise them of their respective legal rights.
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Notes
R. H. Mnookin and L. Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce in the Courts, 88 Yale L. J. 950 (1979).
This is not to suggest that a mediator must be a legal expert or know exactly what these legal rules are and how to apply them. On the contrary, it will be our contention that there are very few legal rules that he need know in order to conduct mediation successfully.
This is also encouraged by the setting in which adversarial proceedings take place. This will be discussed at greater length in Chapter 7, Context.
In this regard, the reader is reminded of the attitude expressed by Raoul Felder, cited in Chapter 4, footnote 2.
The reader is reminded of the discussion of this in Chapter 3, Equitable Distribution in Divorce Mediation.
Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987); Storm v. Storm, 470 P.2d 367 (Wyo. 1970); Loeb v. Loeb, 261 Ind. 193, 301 N.E.2d 349 (1973); Meeks v. Kirkland, 228 Ga. 607, 187 S.E.2d 296 (1972). But see, Rice v. Rice, 372 Mass. 398, 361 N.E.2d 1305 (1977); James v. James, 248 S.W.2d 706 (Ky. Ct. App. 1952); Moritz v. Moritz, 10 F.L.R. (B.N.A.) 1534 (Pa. Ct. Comm. Pleas 1984). Again, what is fair under equitable distribution may depend upon the state that the parties live in at the time of their divorce.
For example, every state has a statute that requires mental health professionals to report instances where either of the parties may have physically abused their children. See, e. g., Ala. Code ∫ 26-14-3 (1986); Alaska Stat. ∫ 47.17.020 (1984); Ariz. Rev. Stat. Ann. ∫ 13-3620 (1978 & 1987 Supp.); Ark. Stat. Ann. ∫ 12-12-506 (1987); Cal. Penal Code ∫ 11166 (West 1982); Colo. Rev. Stat. ∫ 19-10-104 (1986); Conn. Gen. Stat. Ann. ∫ 17-38a (West 1975); Del Code Ann. tit. 16, ∫ 903 (1983); D.C. Code Ann. ∫ 2-1352 (1982); Fla. Stat. Ann. ∫ 415.504 (West 1986); Ga. Code Ann. ∫ 19-7-5 (1982); Haw. Rev. Stat. ∫ 350-1.1(1985); Idaho Code ∫ 16-1619 (1976 & 1987 Supp.); Ill. Ann. Stat. ch. 23, para. 2054 (Smith-Hurd 1987 Supp.); Ind. Code Ann. ∫ 31-6-11-3 (West 1979); Iowa Code Ann. ∫ 232.69 (West 1985); Kan. Stat. Ann. ∫ 38-1521 (1986 Supp.); Ky. Rev. Stat. Ann. ∫ 199.335 (Michie/Bobbs-Merrill 1982 & 1986 Supp.); La. Rev. Stat. Ann. ∫ 14:403 (West 1986); Me. Rev. Stat. Ann. tit 22, ∫ 4011 (1987 Supp.); Md. Fam. Law Code Ann. ∫ 5-704 (1987 Supp. (eff. 7/1/88)); Mass. Gen. Laws Ann. ch. 119, ∫ 51A (West 1987 Supp.); Mich. Comp. Laws Ann. ∫ 722.623 (West 1987 Supp.); Minn. Stat. Ann. ∫ 626.556 (West 1983); Miss. Code Ann. ∫ 43-23-9 (1979); Mo. Ann. Stat. ∫ 210.115 Vernon 1983); Mont. Code Ann. ∫41-3-201 (1987); Neb. Rev. Stat. ∫ 28-711 (1985); Nev. Rev. Stat. Ann. ∫232B.220 (Michie 1986); N.H. Rev. Stat. Ann. ∫ 169:40 (1978); N.J. Stat. Ann. ∫ 9:6-8.10 (West 1972 & 1987 Supp.); N.M. Stat. Ann. ∫ 32-1-15 (1986); N.Y. Soc. Serv. Law ∫ 413 (McKinney 1983 & 1987 Supp.); N.C. Gen. Stat. ∫ 7A-543 (1986); N.D. Cent. Code ∫ 50-25.1-03 (1981 & 1987 Supp.); Ohio Rev. Code Ann. ∫ 2151.42.1 (Baldwin 1976 & 1987 Supp.); Okla. Stat. Ann. tit. 21, ∫ 846 (West 1983 & 1986 Supp.); Or. Rev. Stat. ∫ 418.750 (1985); Pa. Stat. Ann. tit. 11, ∫ 2206 (Purdon 1987); R.I. Gen. Laws ∫ 40-11-3 (1984 & 1987 Supp.); S.C. Code Ann. ∫ 20-7-510 (Law. Co-op. 1985); S.D. Codified Laws Ann. ∫ 26-10-10 (1984 & 1987 Supp.);Tenn. Code Ann. ∫ 37-1-403 (1984 & 1987); Tex. Fam. Code Ann. ∫ 34.01 (Vernon 1986); Utah Code Ann. ∫ 78-3b-3 (1987); Vt. Stat. Ann. tit. 33, ∫ 683 (1987); Va. Code Ann. ∫ 63.1-248.3 (1987); Wash. Rev. Code Ann. ∫26.44.020 (West 1986); W. Va. Code ∫ 49-6A-2 (1986); Wis. Stat. Ann. ∫48.981 (West 1987); Wyo. Stat. ∫ 14-3-205 (1987).
In commenting on the idea that manipulation was not only bad, but could and should be avoided, Watzlawick, Weakland, and Fisch, made the following observation: Nobody, unfortunately, has ever explained how this can be done. It is difficult to imagine how any behavior in the presence of another person can avoid being a communication of one’s own view of the nature of one’s relationship with that person and how it can, therefore, fail to influence that person. The analyst who silently sits behind his receiving patient, or the “non-directive” therapist who merely repeats the verbal utterances of his client, exert a fantastic amount of influences by that very behavior, especially since it is defined as “no influence.” The problem, therefore, is not how influence and manipulation can be avoided, but how they can best be comprehended and used in the interest of the patient. Paul Watzlawick, John H. Weakland and Richard Fisch, Change, (New York, NY: W. W. Norton & Co. Inc., 1974), XV–XVI.
While, at first blush, it might be thought that a mediator is also under an obligation to assure that the couple’s decision was not tainted by inappropriate emotional considerations, we would take issue with this. This is not to suggest that a mediator should proceed unmindful of these potential considerations. On the contrary, when the couple conclude an agreement very much at variance with the expectations created by the then given norms—and particularly when they come into mediation having already concluded such an agreement—the mediator should, of course, test out whether or not one or both of the parties is allowing these considerations to interfere with their own best interests. Suppose, for example, that a young couple with a one-year-old daughter come to a mediator and advise him that they have agreed that their daughter will live with her father. On the face of it, this is all that the mediator knows, and it may well be that it is a perfectly sensible and appropriate decision. Nevertheless, it flies in the face of the given norms of our society at the present time in that, absent very unusual circumstances, it would not be expected that a mother would agree to this. In fact, one would think that it would be very difficult for her even to entertain the idea. Without drawing any conclusions, the mediator must, nevertheless, keep a question mark in his mind. In the course of the mediation he will learn things that he does not now know that will either be consistent with that decision or call it into question. Suppose, for example, that he finds that the husband is a very indifferent father. Suppose, also, that he finds that the wife is very conflicted over the decision which she has made. If that is so, he will then be obligated to probe more deeply into that decision and to get the wife to examine the conditions that have led her to it. The mediator must be very careful here, however. It is not his function to question that decision, let alone to put the wife in the position of having to defend it. It is simply his function gently to probe at the decision to determine how comfortable or uncomfortable the wife is with it and, if necessary, to get the wife to reconsider the circumstances that have led her to it.While we would not suggest that this will necessarily always be the case, if a mediator does this carefully, and particularly if he slows down the pace of the mediation to assure that the wife has had an adequate opportunity to reconsider her decision, it is highly unlikely that, if she is seriously conflicted over her decision, that conflict will not surface or that the mediator will not have an opportunity to address it.
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Marlow, L., Sauber, S.R. (1990). The Rule of Law in Divorce Mediation. In: The Handbook of Divorce Mediation. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-2495-7_5
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