Chapter 3 Alternative Dispute Resolution
"The human spirit is not dead. It lives on in secret. . . . It has come to believe that compassion, in which all ethics must take root, can only attain its full breadth and depth if it embraces all living creatures and does not limit itself to mankind."
—Albert Schweitzer
In this chapter, both alternative dispute resolution (ADR) processes and negotiation basics will be discussed, as well as how they might apply differently to a pet custody or ownership dispute than to other types of disputes. The perspective in this chapter will be useful to both lawyers and ADR professionals.
MEDIATION
Types of Mediation
We will begin with the subject of mediation. There are several different types of mediation, including facilitative, evaluative, and transformative,1 although we will also discuss some variations on those themes for animal-centered mediation.
Facilitative Mediation
In facilitative mediation, the parties' individual interests are stressed rather than their legal positions. The mediator's role is process-based, meaning the mediator leads the discussion and validates conflicting points of view which are not contrary to public policy.2 Facilitative mediation may occur in a joint session or may take place in separate rooms or "caucuses" if the parties agree. The parties are the decision makers while their attorneys, if present, offer legal advice and help shape the agreement.3
In facilitative mediation, lawyer and nonlawyer mediators have a goal of facilitating a mutually agreeable settlement offer. Some may discount the utilization of substantive legal expertise. There is a risk, however, of wasting time if the mediator is not conversant with pet law and what types of mediated agreements courts might allow and enforce or under what circumstances post-decree modifications could arise.4 For example, a joint custody agreement, or an agreement wherein physical custody is awarded to one party subject to another party's visitation with the animal—a schedule that could be called "pet time"—might not be enforceable but may work out fine if the parties' word is their bond.5 A good mediator should be fully aware of the local legal cultural context from which the dispute arises, pet law court decisions across the country impacting the enforceability of these types of agreements, and under what circumstances, if any, post-decree modifications will be permitted when a dispute arises.6 In a facilitative process, it is important to know that a mediator who is more sensitive to the best interests of the pet may approach the process differently than a mediator who is more mechanistic and even dismissive about personal property division.
Evaluative Mediation
In evaluative mediation, the mediator typically offers an evaluative opinion on how the bench might perceive the strengths and weaknesses of each party's claims. This type of mediation is typically law- and rule-based and dominated by legal rights and the concept of fairness. This type of mediation could be impacted by well-presented arguments on issues emerging in case law, such as property, with its traditional arguments, and custody, with its best interest and bonding arguments. The mediation discussion might also involve legal presumptions and concepts such as superior title after exploring the myriad indicia of ownership. The mediator might not address those subjects and instead examine other decision-making criteria.
Separate caucuses are common and individual interests may be addressed in evaluative mediation. An evaluative mediator often influences the outcome of mediation and should have subject matter expertise.7 It is helpful if the mediator is well-versed on whether courts in the jurisdiction are strict constructionists on the subject of finality of judgment,8 what the typical exceptions are, and if the trial courts and appellate courts lean toward freedom to contract in private agreements. It is possible that as courts become more accustomed to flexible provisions with mediated agreements, they may also become more comfortable with a broader spectrum of private agreements.
The parties can authorize an evaluative mediator to utilize best-interest principles through a signed mediation agreement. Best-interest criteria could include the best interests of the companion animal, the best interests of the parties, the best interests of a child, the best interests of a disabled or elderly family member, or even the best interests for all concerned.9 The agreement could also enable the mediator to consider bonds, including animal/human bonds and animal/animal bonds.10
Animal-Centered Mediation
Imagine an animal-centered mediation. Indispensable third parties, such as a breeder or rescue group, could be participants. In the animal-centered approach, the mediator would keep the focus on the best interests of the animal, not what a particular person wants. The conversation would not be, "I consider the dog to be like a child," but instead something like, "When I got Baxter at the shelter and I brought him home, he would hide behind the furniture on the patio. I worked closely with a behaviorist for two years, and now when we go out on the patio, Baxter is able to comfortably lie at my feet."
Another illustration of an animal-centered statement would be, "I should be awarded Lucas the cat because I have taken care of cats most of my life, and my spouse knows little about them." A cat's best-interest focus is better described as "Lucas is a solitary cat and spends most of his day lying in the sunlight by a window on the third floor. We have agreed that I should keep the house, and I think staying in the house is in Lucas's best interests."
An animal-centered discussion would explore whether the animal would benefit from going back and forth between the two parties. There, the discussion would not be, "I think a 5/2/2/5 schedule should work for Francis the ferret, the same schedule we use for our teenage daughter." If the mediation were more pet-focused, then you would expect the person might instead say, "I think Francis should live with me because ferrets are legal where I live."11
Another example would be, "You know that Francis is not good with small children, and your significant other has two toddlers. I am really concerned that Francis will bite one of them. If he does, animal control might put him down." A third approach, using a pet-centered statement, could be, "I think it would work out if Francis was with you at a time that your significant other's children are with their grandparents, which is practically every Sunday. This way, Francis gets to snuggle with you without running the risk that he will get into trouble for hurting someone."
When having an animal-centered mediation, the challenge is not only to keep the focus off the parties and on the pet but also to advance a conversation about the animal and the animal's unique needs and preferences. Beyond the above, a hybrid approach could be used by combining any of the traditional mediation techniques with an animal-centered method.
Transformative Mediation
Transformative mediation is dominated by ideas such as empowerment and recognition; it is considered an outgrowth of facilitative mediation. Each party's needs, interests, and values are identified, and each party's point of view is validated. The mediator takes more of a back seat, allowing the parties to structure the process and outcome as a peacemaking technique. Over time, mediators often develop a personal style, which makes categorizing them as facilitative or transformative more difficult. The animal-centered version of this approach would be on the animal's needs, interests (including standard of living), and emotional bonds.
Choosing a Mediation Type
When choosing which type of mediation is best, consider whether the parties need an enforceable court order or if there is good reason to believe that their word will serve as their bond. Although enforceability of a mediated agreement may not be an issue at the time the parties enter mediation, the original cooperative spirit could change once new family units are established or if one of the parties believes that a joint custody arrangement is no longer feasible. Thus, it is worth discussing how the schedule would be revisited or revised or how decisions would be made in the future. For example, the parties could agree to mandatory mediation on an annual basis unless both parties waive the mediation requirement in writing 30 days in advance.
If enforceability of the agreement is crucial, and the agreement needs to be incorporated into a judicial order in a divorce or civil proceeding, the use of lawyers and mediators with subject matter expertise becomes essential. The agreement should be structured so that the court is more likely to sign and enforce it.
Choosing a Mediator
Mediation is both a confidential and voluntary process. If the mediator seems to be working for the court in a quasi-judicial role, where confidentiality might be compromised, it might be better to find a more independent neutral. When attempting to mediate a case that could result in some type of shared custody agreement, utilizing a respected mediator such as a retired judge or referee could make it more likely that the court would enforce a private mediated agreement.
Mediator Approaches
Regardless of what name we give to the type of mediation selected, there are a variety of mediator approaches. Some mediators will emphasize problem solving and right or wrong concepts, while others are more caring, contextual, and relationship-focused. A mediator might be good at using noncompensatory methods to advance goodwill during the negotiation.
One illustration would be to acknowledge another party's positive contributions toward caring for the companion animal or to show empathy toward a person who will suffer because he or she will no longer see the companion animal because of an...
