Sometimes it takes an exception to reveal a rule.
At a recent mediation, one of us asked a question. In an effort to figure out how to navigate a rough passage the parties encountered in their discussion, the question was: "Does that exchange reflect some of what went wrong in your marriage?" The answer, in essence, was "Yes, and..." What came after the "and" was an explanation of the marital breakdown, including an acknowledgement of infidelity by the speaker.
To those of us who represented divorce clients for years, the client revealed information that was unremarkable. As practitioners, we routinely asked questions about "conduct", as in "who did what to whom,” as part of everyday of case introduction, evaluation and rapport building with clients. That is, when it didn't spill out in response to "Hello, how may I help you?"
The information, mostly private and intensely painful to the party, was rarely relevant to reasonable strategy or potential outcome, but it provided an outlet for the client's hurt and anger, it permitted the lawyer to rule out the kind of outrageous conduct (usually financially-linked) that could influence result. This kind of revelation also allows counsel to show empathy and, on occasion, a flash of advocacy, that might bind the lawyer-client relationship, for good or otherwise.
Sometimes, the client's personal story spices up an otherwise ho-hum interview. On rare occasion it may be interesting or titillating. Every once in awhile, it might cause a lawyer's "maybe I don't have it so bad" moment of personal reflection. But, rarely, very rarely, does it lead to a strategic insight or game-changing perspective on trial or settlement. For a client who is recruiting an ally, and for the lawyer charged with assessing "conduct of the parties during the marriage" in M.G.L., ch. 208, §34, the discussion is inevitable.
With both of us now long out of the representation business, a light went on after the exchange with mediation client above. We just don't hear that kind of thing very often anymore; especially when lawyers are not actively attending mediations.
One of the great promises of mediation is the dignity that comes from self-determination; and self-determination includes process, and not just substance. If conduct is relevant to the parties, they will tell you. If it is section 34 headline grabbing stuff, then we will learn it, in time. But for the vast majority of people, most of the time, fault and perceived misconduct, is an intensely private affair. If they have any self-awareness at all (as most mediating parties do), the clients recognize that a marital breakdown is a mutual failing, that cause and effect are murky at best and that spilling it out to a (non-therapeutic) stranger doesn't make the story go away, or even hurt any less. It simply poisons a well that is already too toxic to survive intact.
Many mediators may respond: "We could have told you that before you started.” However, to us it is a small insight worth sharing. It is also reason number 1,642 why it is great to be a mediator.
Have we grown indifferent to our clients' suffering, or even just incurious? We don't think so. We just think that our clients are bright enough to know what they need to tell us, and when; and we trust our instincts and human connections to know the rare occasion when a direct inquiry may be useful to the process, or even necessary (e.g., domestic abuse). That the exchange above is exceptional at all proves the point. We are there to facilitate productive discussion and to help structure dispute resolution. Therapy should be left to therapists; strategic alliances to counsel; and consolation to family and friends.
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