I attended a Washington continuing legal education workshop recently to make sure I was keeping up in the newest developments in our family law. One of the most interesting sections involved a panel of very seasoned practitioners who also perform “mediation” services, discussing the implications of a recent appellate court decision called Marriage of Rockwell. The Appeals Court said, in passing, that in a marriage lasting 25 years or longer the court should seek to provide the two parties a roughly equal standard of living for the remainder of their lives. Let’s just say that lawyers aren’t real pleased with this broad rule because it both turns long running standards on their head and imposes a blanket rule that doesn’t take into consideration important nuance. (What if Husband and Wife get married when they are 20 and divorce at 45? Does the higher earner owe maintenance to the other for the next 20 years? Does this mean that the Wife’s inheritance from her parents (which is considered to be her separate property and usually awarded to her, alone, in almost any state) is now up for grabs, with her husband of 25 years getting half? What if they are married 24 years? 22?) Anyway, while the questions about the decision will continue, it is now on the books in Washington and the “mediator” panelists talked about how they would employ this new legal authority. (Note that I place the term “mediator” in quotes because the process employed by lawyers is more of a “settlement conference” which is a one shot, usually all-day, ordeal in which the two people are separated and the “mediator” goes between conference rooms and tries to move the recalcitrant parties closer – and then to binding agreement by the end of the day.) One panelists felt he was being clever when he referred to the “Rockwell whuppin’ stick” and another experienced “mediator” chimed in with reference to the use of this opinion as a “whuppin’ stick.” (As in, “If the husband is being stubborn about spousal maintenance, I can use Rockwell as a whuppin’ stick and tell him that a court could order a much greater, outrageous, term of alimony under that case.”)
What really ate at me the next day was how each of these people saw their role of getting wounded, frightened, angry, defensive and all-around emotionally challenged people to come to agreements that will impact the rest of their lives by hitting them with a “whuppin’ stick.” The absolute essential key to a solid, durable and effective agreement is that each person enter the agreement without undue resistance. Each must understand and accept what he or she relinquishes in the agreement. Equally important, each must acknowledge (to themselves at least) what he or she gained from the agreement. My strongest criticism of the conventional legal “mediation” is that at the end of the day, each person will generally feel emotionally and mentally drained with a very high degree of resentment and “woulda, shoulda coulda’s” the next morning. This risk is certainly accentuated when the settlement conference official finds a new rule of law, however flawed and criticized, to use as a “whuppin’ stick” to bring people into line and move toward settlement.