Sign of Our Times: Mediation
As we boarded our train at 30th Street Station, I noticed a large billboard advertisement for mediation services in the Philadelphia area. After leaving the station, the train headed north on Broad Street, passing Temple University and reminding me of last year’s Elder Law Symposium in which I participated in a weeklong series of lectures and discussions on mediation. Deciding to catch up on the day’s news, I opened my copy of The Wall Street Journal. The first article I turned to was entitled “A Fading Court Scene: Juries in Civil Trials.” The article reported “jury trials in civil cases are vanishing from the judicial system even as the legal profession is booming. Fewer than 2 percent of civil cases went to trial in 2002, down from 11 percent 40 years earlier.” The article concluded that one of the reasons jury trials have been curtailed is the fact that more cases are resolved outside the courtroom through processes such as mediation.
We finally reached our destination, the quaint town of Doylestown, for a walk through town, dinner at the Black Walnut and a movie at the County Theatre. We decided to see Juno, a recently released movie about a 16 year-old girl’s journey through her unexpected pregnancy. The main character, named Juno, responds to a newspaper ad placed by a young married couple wishing to adopt a new born baby. Conflict arises and the married couple engages in collaborative divorce to resolve their differences and provide Juno’s baby with a home. Wow! Mediation and collaborative divorce on the big movie screen and in one of the top 10 movies of the year.
Clearly, there is a positive trend in the use of mediation and other dispute resolution processes in all types of cases. Most recently, I have mediated two cases which I think are perfect examples of how mediation is used to allow the parties to participate in reaching a final settlement of their dispute and accept the outcome without over spending on fees and emotions.
In the first case, an elderly couple wanted to remain in their family home and care for themselves. Their children decided the parents were not capable of living independently in their home and caring for one another. Some of the children hired an attorney to file a guardianship petition to have the parents declared incompetent, setting them up for assisted living or nursing home care. Others in the family believed they could best care for their parents and hired their own counsel to dispute the guardianship petition. By the time the matter reached the court, the parents’ home had been sold and they were living in a retirement community with some assisted living. The issue of the guardianship was still pending. I was asked to represent the legal interest of the parents. After meeting with my clients, it was clear that all parties wanted the same outcome for the parents: appropriate care and a safe living environment. The parties lost sight of this goal while posturing for the court hearing. Through the mediation process, we were able to resolve the care issue of the parents and select an appropriate person to act as a guardian for the parents. Although there was much tension throughout the process, the parties ultimately agreed on what was best for the parents and the parents provided input as well.
In the second mediation case, a young couple, married four years, decided to end their relationship and divorce. They called me to express their interest in the mediation process; they did not want to over-spend on fees and wanted to remain cordial to each other during and after the process. I met with both the husband and wife to discuss the mediation process and to determine if their case was ready to mediate. The determining factor was that each party truly wanted to be fair to the other party. However, for this to happen, they had to listen to each other’s perspective. After I advised them of the legal definition of equitable distribution and the factors for support and alimony, they each had an opportunity to explain why their economic request was fair. When listening to one another, the parties discovered they had not considered all of the reasons brought up by their spouse.
For example, the husband had relocated to another state and left the wife living in a large marital home, which was up for sale. The husband was the higher wage earner and could afford the marital home; the wife could not. The husband agreed to live in a smaller apartment and continue paying the mortgage until the house sold, as long as wife paid the other expenses for the house and maintained it until it sold. The equity in the house would be divided equally at the time of sale. Another example of compromise involved health insurance. The wife relied upon the husband for health insurance, which he acknowledged and agreed to continue until the wife had insurance of her own. In turn, the wife agreed to consider this as part of any alimony due to her after the divorce. After several involved mediation sessions, the husband and wife resolved their differences and the divorce process was not as painful as they thought it might be.
Meditation and dispute resolution are signs of our time and options to consider in any conflict matter.
The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.