After practicing Family Law for the better part of two decades, I had a pretty well-developed confidence in my abilities and experience as a negotiator and court advocate. When I decided to move my practice more decidedly into the ADR space back in 2020, that confidence came along with me. Mediation? No problem – I’ve been doing that for years representing clients through that process. Arbitration? Why not – seems simple enough, and there’s an entire instruction manual at my disposal (the Revised Uniform Arbitration Act, to be precise). Private Judging – but of course! I’ve had plenty of experience over the years in law and motion practice and trial to deploy as a private judge in a family law case. Interestingly, California does not require a particular degree or even any specific training for mediators. Parties and their attorneys are free to hire whomever they trust can do the job. As I began to work more with mediation clients, though, I realized that my experience as a litigator did not provide a template for how to handle clients in the ADR arena. I completed some continuing legal education courses online to get a better idea of the structure of a mediation start to finish, which I found to be quite helpful. But I am – for better or for worse – a perfectionist, so started looking into ADR programs offering instruction in the area. The program I found most appealing (and not only because it is perched just above the California coastline in beautiful Malibu) was the Straus Institute for Dispute Resolution at Pepperdine’s Caruso School of Law. I enrolled in the Certificate program there last December and started classes in January.
My Early Experiences in Mediation Education
So far at Straus, I have taken Negotiation Theory, Mediation Theory, and Online Dispute Resolution. All three classes have been completely fascinating, especially coming from my perspective with nearly 20 years of practice in my particular discipline. Though those courses are not specific to Family Law, Family Law issues are woven throughout all of the course material. This was particularly true of Online Dispute Resolution, which taught me that other nations are doing a WAY better job of managing their divorcing populace than the U.S. is (special shout out to the Netherlands, where the government generally pays for divorces, and their platform is extremely mobile-phone friendly).
Evaluative versus Facilitative Approaches to Mediation
What else have I learned in the early days of my experience at Straus? I think the most profound part of my education there so far has been in identifying, naming, and deploying specific approaches to conflict resolution. Those approaches fall into two broad categories of Evaluative (where the mediator is leaning heavily on predictions of what a trial judge or bench officer would do in a particular case) and Facilitative (where the mediator focuses on creative approaches that go well beyond what a trial court could or would do and into identifying shared interests to resolve disputes). I have wrestled in the past with these two general approaches without being able to put into definite terms what I was wrestling with, or why I was struggling to make sense of it. I have never really embraced the idea that all a mediator should be doing is predicting courtroom success for the parties – that can have the effect of polarizing the participants in light of the evaluative mediator’s predictions. That can make settlement even more difficult. To be fair, an evaluative approach has its advantages if the mediator uses it skillfully. But it can be triggering to the party on the wrong end of it, and can solidify trial positions of the party on the right end of it. Settlement is nearly always preferable to rolling the dice at trial, and an outcome like this in mediation may actually guarantee that settlement negotiations fail.
I have usually been in the camp of the facilitative folks – those that look around the edges of the dispute for things that might grease the skids on the central issues. Finding areas in the conflict that are not at the heart of the dispute, but that both parties can find some value in if they compromise on other issues, can be an art form. It is not an easy thing to do in a divorce case because some semblance of trust and respect between the parties is required to embrace a solution that benefits both. Trust and respect are at a premium in a divorce just by the nature of the conflict. It’s emotional and difficult to allow your defenses to go down in this way. But the best facilitative mediators are excellent at building trust and rapport with the parties, which can make all the difference.
Being able to verbalize how these approaches work, rather than just sensing them during the mediation process, has significantly deepened my appreciation of mediation generally. In my mediation cases, it has helped me to more effectively prepare for meeting with the clients productively by planning my approach (which is usually a blend of facilitative and evaluative) and switching things up as necessary to get the result that is most stable and likely to hold at the end of the mediation.
How A Skilled Mediator Can be a More Effective Trial Attorney
I think my litigation work has been affected even more significantly in these early days than my mediation work. At the core of mediation is effective communication, and more to the point, active listening, which includes not just hearing what the person is saying, but also noticing all of the many non-verbal cues while the person is speaking and while that person is listening to you. If a mediator is not listening actively to the parties and paying attention to how they react to certain comments or ideas, opportunities to find fertile settlement ground can be missed. Similarly, I believe that attorneys representing clients in litigation work can be much more effective as an advocate if they listen more closely to the clients instead of focusing solely on legal positioning and black letter law. Even more powerfully, the ability to actively listen to the bench officer herself can be so crucial to better court outcomes. The ability to change the course of an argument based on a judge’s smirk, smile, raised eyebrow, or other reaction can be significantly improved with practice in active listening. Even in a litigation case, it can open doors to settlement just like it can in mediation. Knowing where to push in negotiation, how to listen for a judge’s tacit commentary, and how to get the client’s best result even when the client does not consciously know what that result actually is can fundamentally change a case’s litigation arc. And saving the client money, time, and the anxieties common to a courtroom divorce, are all goals worth aiming for.
More to Come . . .
Obviously my education at Straus is far from complete, but I have been so impressed with the program, the faculty and the administration that I have requested to double up on the required coursework and go into the LLM program. It may take (a lot) longer, but I anticipate growing professionally in ways I never thought possible. I will continue to expand on my Straus experience as I put in the work – work that I very much look forward to doing.
And of course, studying at a campus as beautiful as Pepperdine’s certainly doesn’t hurt.
Attorney NEIL FORESTER is a California bar-certified Family Law Specialist and a Fellow in the American Academy of Matrimonial Lawyers. He serves as divorce litigator, arbitrator, mediator, private judge, consulting attorney, and pre-litigation strategist, and provides second opinions as well as prenups, adoptions, cohabitation agreements, domestic partnerships, and pet parenting plans. Learn more at foresterfamilylaw.com.
This information is general in nature and should not be construed as legal advice.