Monday, November 9, 2009
I recently came across this thought from a speech given by John Bolton, former U.S. Ambassador to the United Nations, that is particularly apt regarding mandatory mediation in divorce actions (he was not speaking on the issue of mandatory mediation, but his thoughts still apply):
Negotiation is not a policy. It is a technique. It is a way of achieving our objectives.
It doesn't tell us what our objectives are. The emphasis on negotiation as an end
in itself reflects . . . shallowness . . . and gives us little confidence that our interests
will be well-served.
Mediation is mandatory in Utah (yes, you can be excused from the obligation, but pursuing that objective does you more harm than good and/or costs you more than just jumping through the mediation hoop, generally--which I submit is by design). Mediation is often (not always) an effective means of resolving conflict to the mutual satisfaction of the parties. But there is nothing inherently effective about mediation nor is there anything about mediation that makes it the panacea for all the ills of divorce. Mediation works for people who want to compromise. Compromise, however, is not required of a party to a divorce action, or any legal action. If that were so, there would be no need for courts and judges, just mediators and/or craps tables.
Yes, yes, I know, I know. Insert Abraham Lincoln quotation here:
(Note: Lincoln never actually gave this lecture, but I digress.)
Even Lincoln qualified his encouragement to compromise with "whenever you can," not with "by any means necessary." So what do you do with the party/parties that either will not or cannot negotiate (and thus compromise) in good faith or without compromising their interests away altogether? Some would suggest (and seriously too) . . . more mediation.
Too often, parties who do not settle in mediation (and for good reason) are chastised by the court for somehow failing to "do right" by the mediation process. Mediation is (or was), however, an alternative to litigation, not a substitute. When mediation, like negotiation, becomes an end in itself, it becomes shallow and gives participants in their divorce case little confidence that the interests of justice, equity, the parties, and their children will be well-served. This is why mandatory mediation (not mediation itself, but mandatory mediation) is, in my opinion, a dereliction on the part of the courts to meet their Utah State Constitutional duty to redress grievances properly before them.