Using a retired judge or anyone else to “evaluate legal positions”
is NOT mediation, regardless of what people may call it. Anyone can very
easily look up the definition of mediation and what is involved.
Mediation 101 is to get people off of their positions by flushing out what lies beneath those positions.

There are only so many ways to try and convey the information I keep sharing online.

On October 31, 2015, someone told me about a current divorce case and how
it is being handled. They do not believe that the law on certain issues
is “fair.”

This same person just advised me that the case in now in mediation before
a retired judge. The “mediator” is merely advising the parties
and their respective attorneys how they would rule on the case if they
were still on the bench and the matter appeared before them. That, my
friends, is evaluating legal positions, not mediation. The “mediator”
is also doing “shuttle mediation,” meaning that the parties
and their attorneys are kept in separate rooms and the “mediator”
shuttles back and forth in an effort to settle the case. People formally
trained in mediation tend to prefer that the mediation take place with
everyone in the same room, as much as possible.

The following are some of the comments I made to to this individual:

I repeatedly remind people that
it is a grave mistake to confuse “legal justice” with “fundamental
fairness.” If you want “fairness,” then you have no business seeking “legal
justice.” That means — work outside the legal system through mediation
or collaborative law.

I have long advised people not to handle their divorces outside of mediation
or the collaborative law process, if at all possible. Courts can’t
do a great many things and when people are fighting against each other,
rather than working with each other, they won’t give their spouse
things that are unattainable in a court of law.

I really wish that more mediation minded attorneys had been retained in
this situation. Unfortunately, they are few and far between. Meanwhile,
litigators are far more sought after than mediation-minded lawyers. I
have won numerous honors and awards in my capacity as a family law attorney,
mediator, and collaborative divorce practitioner. Neverthless, since I
don’t want litigated cases any longer, I have time to write prolifically
and use the social media as I do. That should tell you something. I am
much happier now that I don’t litigate, but I feel it in my wallet
because people are hellbent on retaining destructive litigators.

The stress you are describing as a result of the divorce is exacerbated
by the way it is being handled because they are involved in litigation
(or at least litigated negotiation), which is a destructive process and
I keep saying just that. The “unfairness” that will result
from not working outside the legal system and resolving their issues on
a “needs and interests” basis, rather than a “legal
rights and obligations” basis is quite clear. That being said, for
people to agree to do something that is not legally required under the
law requires the exact opposite of fighting against one another. People
don’t tend to give things they don’t have to give, when they
are behaving in an adversarial manner. Furthermore, it is far more likely
that people will be willing to make such concessions, the earlier they
get into mediation because litigation (and litigated negotiation) exacerbates
the conflict level and breeds paranoia.

May I point out that I have consistently said that being a retired judge
does not make a person a mediator. Unless the retired judge is highly
emotionally intelligent, has been trained in mediation, and has mastered
that art, the retired judge is nothing more than a retired judge. What
do judges do? They judge. Mediators don’t judge.

Mediators have a COMPLETELY different skill set. I have repeatedly said
that since lawyers don’t know what mediation is and are not comfortable
with emotions, they use retired judges as “mediators” and
call “soft-arbitration” mediation. I am afraid that a retired
judge “mediator” is merely going to advise people how the
matter would be handled in a courtroom, in the retired judge’s opinion.
Does that sound like what I described as mediation?

Real family law mediators know better than to conduct shuttle mediation,
which is what you have described, at least to the extent they can avoid it.

People can only give what they have and teach what they know. I have more
to give and teach than the vast majority of my colleagues and that can
be gleaned just by reading some of my articles. If people don’t
appreciate those skills and knowledge and want to hire traditional attorneys,
so be it. I can only do what I have been doing, which is trying to educate
a public that doesn’t care to listen and learn. I’m glad that
you apparently finally “get” what I have been saying.