Family mediation

Introduction

'You cannot shake hands with a clenched fist'[1] Game theory[2] offers a useful insight in the evolution of mediation in Jamaica. Certainly, while founders of the theory did not necessarily conceived of their work being used in this way, it is likely their expressions would not register surprised at its use[3]. Mediation has impacted the legal landscape in Jamaica and the 'cut-throat' adversarial process whereby one party wins at all cost has been supplemented by a system whereby it is possible for both parties to win. and even when only one party 'officially wins, no one goes away feeling completely a loser. At the very least, mediation leaves participants with their dignity intact because they do not draw battle lines and fight like an army but by sitting in a spatially less controlled and regimented environment they become prisoners of peace[4]. This rather optimistic stance has to be clarified for certainly not in every case will participants be entirely happy. What is clear though is that Alternate Dispute Resolution brings into sharp relief the inadequacy of the juridicial process to accord justice in family disputes for justice entails more than a legal outcome but a feeling of human dignity. In many instances it also requires continued interaction between the parties long after the substance of the dispute has ended. Mediation offers that because it offers participants the chance to own not only the outcome but the process leading to it. What is important to note is that often even in a separation in a divorce matter the parties may have children and their interaction will continue long after the actual dispute has ended. Mediation usually finds prominence in family disputes mostly in issues related to the custody of children or those related to visitation and divorce. Mediation addresses the question as to how to get rational persons to shift their positions. Game theory is useful because it helps to define this strategic interaction as the concept of a game must be understood as 'Any set of circumstances that has a result dependent on the actions of two of more decision makers ("players").'[5] The model then why not necessarily predictive of outcomes in family disputes is premised on the supposition of rational decision-makers who will likely shift their positions to achieve the most desirable outcomes.

Jamaica's Legal System

Jamaica's legal system is firmly rooted in the common law as inherited from the UK but the intricacies of modern life which includes a proliferation of problems that need to be adjudicated in some ways have clogged the justice system, and slowed it significantly. There has therefore been a systematic attempt to make divorce paper-based and to move away from the adversarial system. Legislation have been enacted that allows for the equal distribution of property upon separation as well as the granting of a divorce without the need for a trial unless contested by one party. Despite these changes the potential for litigation looms large as individuals not only contest divorces but the question of settlement of property or the custody of children is not always clear-cut matters. The rationale though is not simply one of efficiency. There are considerations of whether family matters are best suited for the adversarial system or to put it another way as to whether better results would not be possible in a different setting. There is the emerging view that even within the context of the inevitability of litigation it is possible that there may be appropriate cases where the issues may be sufficiently narrowed through mediation.

This essay will explore the transformational changes that have taken place within the legal processes in Jamaica as it relates to family disputes by focussing on the role of mediation in the family courts especially in divorce and custody matters. The essay seeks to show that while there isn't a groundswell there has been a significant shift in thinking and attitude whereby mediation is leading a silent coup det ta in changing the language of disputes and create a culture of conciliation and problem solving within the country[6].

Family Disputes in Jamaica

The intention of the Matrimonial Causes Act were designed to reduce the confrontational approach to disputes Family disputes are like the mathematical models used in game theory which seeks to predict outcome by interacting parties[7]. Despite the intensity of the dispute both sides ultimately want to achieve the best possible outcome. Each party has to assume that the other party is rational even though he may not know exactly what the other party wants. 'Game theory is the science of rational decision making in interactive situations.'[8] 'Game theory can be defined as the study of mathematical models of conflict and cooperation between intelligent rational-decision makers.'[9] Both these definitions focus on the interactive component between the parties. At the heart there are the twin issues of conflict and cooperation. There is the assumption that these decision makers are rational and have specific objectives in mind which in a dispute is to reach a settlement. Game theory, a mathematical model used in a variety of dispute contexts starts with the premise that the participants, while not knowing fully the position of the other party, are rational and want to achieve the best possible outcomes. It is in this situation that the mediator's role becomes increasingly important to help move the parties along in the process of information exchange until they come closer to a common understanding as to what the other person wants. Game theory provides a new language to think of human behaviour and of parties who are in conflict. Mediation can be used in the family setting to alter the expectations and preferences of the parties. In game theory, one of the dominant models which has been used to explain the behaviour of individuals is the Nash Equilibrium. The usefulness of the Nash Equilibrium is that somewhere in the mix of emotions there comes a point where the parties realize that they will need to settle in order to maximize their chance of a positive outcome. To do otherwise at this stage is likely to adversely affect their claim.

Divorce, children and the role of the mediator

Jamaica has reformed its family laws moving away from a fault-based divorce procedure to a 'no-fault' divorce. In short, a divorce where everybody 'wins', at least in theory. Other provisions of the legislation including the welfare of the child principle require some form of consultation to ensure that the parties arrive at suitable arrangement where there are children involved. Family law in Jamaica has been designed to support a conciliatory approach. For example, in the event of a divorce between the parties, a grant of a decree absolute will not be granted until the court is satisfied that adequate provisions have been made for the welfare of the children (if any), that are involved. Jamaica's family law is highly influenced by the Australian legislation[10]. Ingleby (1993) indicates that the nature of Australian legislation encourages continued association between the parties.

The court will also not grant a divorce unless the parties have been married for at least one year and have lived separate and apart for one year. It must be clear that the marriage has broken down irretrievably so that all avenues have been explored and it has been shown that reconciliation is not possible. In addition, there is a mandatory waiting period of six weeks between the granting of the decree nisi and the decree absolute which still allows for the parties to be reconciled. So even where there is no formal mediation requirement, the underlying theme in divorce proceedings is reconciliation, or conciliation whichever is possible.

Game theory assumes that people rational and are looking out for what is the best for themselves and if they become aware of factors that they themselves never considered then they may consider a change of positions. It is for this reason the mediator is so crucial to the information management process in family disputes as this is likely to assist parties in shifting their positions. In this way of information management the mediator is able to shape the outcome as both sides want to understand what the other wants as well as convey to the other party what its interests are in the dispute. Mediators can draw inferences about what each party's strategic position is and may assist in predicting outcomes by looking at key features involved in decision-making. Game theory looks at choices, chances, values and beliefs but it is not concerned about the past information. Similarly, no-fault divorce is more focussed on the future than the problems of the marriage. While the mediator is not the decision maker in the strictest application of the phrase, he is nevertheless the one who manages all the information, especially in a context where shuttle diplomacy is being employed. To this end the mediator must be able to create an appropriate information model that will work. He also has to create an atmosphere where each party becomes aware of his option but as he does so, he must consider their 'preferences and reactions'[11]. By acquainting himself with the expectations of each participant in the dispute process the mediator assumes more than a supervisory role but a God-like benevolent purpose. In this way he influences the process by deciding which or what part of the information to convey, effectively becoming a decision-maker. The mediator must ensure that what would have been framed in adversarial language is not spoken in the language of peace.

Coogler (1978), makes the observation that mediation when used in separation and divorce, matters is important in ensuring that the individuals involved are able to preserve their dignity. Wallerstein in "Psychodynamic Perspectives on Family Mediation" says that "mediation has been based on a rational economic model of decision making. The resolution of conflict of interest between parties is assumed to come about through the process of first clearly defining the issues, then negotiating and compromising in order to reach an agreement.'[12] The assumption says Wallerstein 'is that of rational man, and it is expected both that the participants will behave rationally and that they will eventually, through negotiation, maximize their payoffs, cut their losses, and compromise their positions."[13] The participants in the dispute calculate the risks in the form of a cost-benefit analysis. Like in any game, the rules must first be established so that the participants understand the direction in which the mediation is going. This will assist the process in reducing hostilities later on as well as the shifting of positions by the parties.

The provisions of the Matrimonial Causes Act are designed to allow for the peaceful resolution of issues. Attorneys are themselves under a statutory obligation to inform their clients about the need for reconciliation. The parties themselves have to attend mediation services. By taking out some of the issues normal to maintenance this too helps to provide an atmosphere of calm. Mediation represents a positive-sum and so litigants are beginning to move towards this in a number of areas. To some extent, the ground is shifting under their feet because of the family law legislation. In other instances the decision is theirs based on suggestions from mediation-minded attorneys. When the cost benefit analysis is done parties hope to move from the zero-sum position to the non-zero sum which represents a more positive outcome

The Cost of Litigation

The decision to litigate has a number of costs involved that actually impacts on the access to justice. The cost of hiring an attorney is never cheap which always entails the concomitant filing fees. In addition, the longer the trial goes on the greater the expenses will be. Cases in Jamaica have been known to languish in the courts which means that separate from the duration of the trial and the potential financial liability incurred there is the emotional component of having to wait for a resolution of a matter that may not necessarily produce a positive outcome. Mediation can potentially be emotionally as intense as a trial but in most instances it is likely to last for a shorter period of time. In addition, the non-binding nature of it, unless an agreement is reached by the parties may make the emotional investment less while reducing tensions.

Litigation is war; mediation is not. In litigation, the parties chances not only depend on the advocacy skills of counsel, the architecture of courtroom or the weight of the evidence, but could also depends on what the judge had for breakfast.[14] Mediation has placed the destiny of the parties in their own hands. They can do their own risk analysis and assessment of relative strengths and weaknesses of their own cases while at the same time still being willing to engage in a process of bargaining, if for nothing else to have the matter resolved in a timely fashion. The mediator can also help in this process in a way that a judge, a dispassionate arbiter of the law, bound by precedents, decorum and a watchful appellate court cannot do.

It is possible in other areas of ADR that both parties could leave feeling cheated. Certainly, this is never the aim of the mediator nor the participant but as Nueman had pointed out there is also the negative sum.

The debate around the table where the mediation is taking place or the separate rooms must shift in a way that each party begins to see how a non-zero sum solution is in their best interest. The parties understand that by the elimination other players in the judicial system they have become empowered, much more time and resources are saved and the result is a positive-sum outcome. They are not constrained by rules of court or rules of evidence and while some mediators are issues focused, many times collateral considerations are given some import. Sonia Nourin and Shah-Kazemi in discussing mediation in disputes in family matters cites the Gulliver's model as representative as useful tool in citing the trajectory 'of negotitations'. Gulliver is keen to stress the fluidity of the phases and the fact that the phases arise out of the nature of the dynamic interaction between the parties. As the aims of the parties change, so successive/new phases are entered into. Alongside this interaction there is the movement of the cyclical exchange of information from antagonistic paucity of exchange between the parties, to co-ordination between them with mutual increase in learning. Needless to say, this model is not arbitrary, nor restricted in its application; it serves as a trajectory to chart the progress of negotiations[15].When this is placed in context of the Prisoner's Dilemma, a central feature of game theory a marked similarity may be observed.

Conclusion: The New Dispensation

Game theory is predicated on the premise that there can be a 'non-zero sum' game where simply because one of the parties engaged in the dispute process has won, it doesn't mean the other has lost. It is for this reason that only some cases are suitable for mediation. The mediator in striving to let the parties own the process is in fact working for a 'win-win' situation—trying to bring the parties as close to a tolerable position as possible. The mathematical models which game theory provides shows how litigants in a contentious legal issue engage each other in a diffused environment, away from the intimidating prospects of the justice system.

Mediation seeks to arrive at a consensual outcome by allowing the direct participation of the parties in the process. They may even be able to communicate directly with each other, something which would generally not be possible in a court setting with rigid rules of evidence. The flexibility of the process accounts to a significant degree for its attractiveness.

'Litigation can be damaging to both parties in a dispute. It is at best a zero-sum game in that what one party wins the other loses. Mediation can strive to reduce hostility between the parties, to fashion an agreement about tasks each party is willing to assume and to reach agreement on methods for ensuring certain tasks have been carried out. It can lead to a win—win result.[16]

Mediation offers the parties an opportunity to avoid risks and reduces the likelihood of an unfavourable outcome. It gives the parties in the dispute the opportunity to consider the risks involved in litigation. The use of game theory is not meant to assume that within it is the solution to real life issues. What it offers is simply a model, no different from those used by Gulliver[17] and others to understanding conflict situations and analyzing how parties can make decisions that result in a positive outcomes. At the heart of game theory is collaboration between rational persons who make strategic choices to achieve a particular outcome. For while game theory uses the language of game, it essentially revolves around the participants (players), the game, information and outcome. No successful mediation can take place without these elements.

There is also no claim to expertise in the use of the game theory model and the approach may in fact be superficial, but mediation transforms disputants into a harmonious non-zero sum relation which elevates the process of ADR into a normative justification for the avoidance of litigation.