Do I need to proceed through the courts to achieve a valid settlement of my family dispute?

Any divorce proceeding requires the local court to ratify the final property, custody and visitation agreement and issue a legal decree ending the divorce.  This does not mean that the process needs to begin with a court filing.  To the contrary, most family dispute settlements begin outside the courthouse with a conversation with an attorney who can represent you in the settlement negotiations and when a deal is reached file for the divorce in court.  Conversely, you can contact a mediator who will sit with both sides and work through to a settlement. These are the two most frequented procedures in the family law area today.  It is the client’s responsibility to begin researching and asking questions regarding these processes and it the attorney’s professional responsibility to outline all the options that are available while reviewing the pros and cons of each.

It is important to note there are definite cases when a traditional settlement approach is not warranted.  The courts and court psychologists consider cases of domestic violence inappropriate for mediation because of the power imbalance – the trauma, fear, safety and non-constructive way in which the parties are communicating simply do not work in a mediation context.  There also may be cases of infidelity, neglect, or abuse that cause one party to feel ill at ease in the presence of the other that mediation becomes a challenging option.

It is understandable that in almost all successfully negotiated settlements through mediation, there is a level of conflict that makes the process uncomfortable, uncertain, and difficult to predict the future. The important first step in the process is to meet with a trusted counsel who will have your interests in finding the right settlement or litigated process that fits your circumstances. It can be even more helpful when that individual can serve as your counsel or mediate the dispute.

Taking a slight turn: My History in Conflict and Alternative Dispute Resolution

I wanted to share a brief history of how I moved into the world of conflict resolution and Alternative Dispute Resolution. I share this story not about me so much as about how powerful each of our personal stories can be in context to the changing world of our political times, the profession, and when we are clear about our personal goals and aspirations.

My first introduction into the formal ADR world came at a challenging transition in my life. I had decided to leave my position as Associate General Counsel at Verizon to move into a private practice. I was in a small firm and the chemistry between the principal partner and me did not work out. With a young daughter and a second child on the way I decided to move with a colleague and friend from Verizon into the federal government.

At the time that I entered federal practice as counsel at the Federal Energy Regulatory Commission (FERC) in 1990 Congress had just passed the Administrative Dispute Resolution Act (ADRA) and the Negotiated Rule Making Act (REGNEG).

These two seminal pieces of legislation served as a platform for much of my work and career advancements for the next eighteen years.

ADRA and REGNEG turned into the blue print for a cultural change in federal administrative procedures. ADRA required every federal agency to appoint a Dispute Resolution Specialist who would have the charge of implementing the Act, require that a systems design be implemented that fits the needs of each agency, and that staff be trained in all aspects of the program. I had the honor of serving as a Dispute Resolution Specialist for my agency for most of my years of federal service.

My work at the FERC had its foundational core education and training of Staff, Federal employees and the Private Sector executive leadership. My introductory training was a week-long intensive program sponsored by the Office of Personnel Management’s Executive Training Center where I had the privilege to sit in for Dave Cook the General Counsel.

I would not have expected at that point I would have wound up as one of the lead faculty for the Executive Training Center teaching mediator ethics, confidentiality, and multiparty mediation just a few years later.

I did learn and promote the importance for federal agencies to invest in their work force in this area to build capacity and knowledge of how ADR practices can have positive impacts in employment disputes, contract disputes, and other regulatory dealings.

Out of this preliminary work I was detailed to a small federal agency known as the Administrative Conference of the U.S. (ACUS) The detail involved my working as part of a team with some pioneers in the Federal Dispute Resolution world including Phil Harter, Les Adelman, Frank Carr, Charles Pou, John Settle, Neil Kaufman, Richard Miles and many more senior dispute specialists who worked to change the federal administrative culture from a litigious world to one that was focused on weighing alternatives and resolving conflict.

With this goal in mind, one major project focused on working with Senior Counsel from 24 Federal Departments including all cabinet agencies to commit to using ADR to resolve all contract disputes that arise pre and post a final contracting officer’s decision. This effort ultimately lead to a change in the Contract Dispute’s Act making it a requirement for contracting officer’s to enter into ADR prior to formal litigation. This change that was implemented in 1995 serves as a foundation for clause drafting that focuses on a stepped approach such as: executive negotiation, mediation, and then arbitration. At the administrative level, a hearing board certainly can be seen as substituting for arbitration, albeit not binding.

The Second Course Part 2: Interests

The interests are often not easily bundled into a list, or clearly called out, but are often lurking below the surface. The mediator/neutral and the principal party will usually engage in a dialogue or an “appreciative inquiry” of understanding why the client is taking a certain view or position on an issue in order to get to the underlying interests.

One instructive example involved an electric utility responsible for providing transmission and distribution of natural gas into a major urban area. The utility provided its customers in this million plus metropolitan area with natural gas served from this one major pipeline. In essence every major hospital, university, business, governmental agency, etc., that was using natural gas for heat and/or electricity was reliant on this pipeline.

The problem facing the parties was that the gas company who owned and maintained the pipeline was required under federal pipeline safety laws to ensure that the pipe was free of debris or other substances.

This law was closely monitored after 9-11 and an increased watch of the nation’s infrastructure. This required what is known as “Pigging” the system or sending a remote controlled camera through the pipeline to check flow, blockage, etc. In some circumstances the pigging device can get stuck and shut down gas flow altogether that would curtail gas flow on the line and essentially shut down the heat and a significant amount of the electrical generation for this major urban area.

The interests boiled down to on one hand the pipeline company was required to inspect and ensure the safety of the line or it could lose its certification to operate; and the utility had the health and safety requirements of its customers at the fore by ensuring natural gas and/or electricity was available. The solution which will be addressed in the next writing focused on how to meet both sets of interests. This almost always the case in reaching a durable agreement that the parties in the end determine they can live with.

Getting to the place of understanding and recognition so each party knows that they are being heard is critical to getting to yes. This is an aspect of the various stages that cannot be overstepped – – nor is it a touchy feel-y stage that some principals and counsel fear. It is a pragmatic dialogue that produces a deep recognition of the problems and concerns gripping each party.

As a mediator I feel responsible when this is not achieved, and when it is I am happy to give full credit to counsel and their clients in doing the necessary work to get to an agreement.