Co-optation, competition and resistance: mediation and divorce professionals in Israel

Abstract Abstract This paper investigates the development of family mediation in Israel within the theoretical framework of the competition between professions (Abbott, 1988; Shamir, 1993), and the co-optation model of Coy and Hedeen (2005). It describes the formal institutionalization of family mediation in Israel and examines the claims made by lawyers, therapeutic mediators, and lawyer-mediators about the nature and boundaries of their professional enterprise and their goals and practices. Based on 254 questionnaires, semi-structured taped interviews and professional documents, our study found differences in the way the professionals construct the nature of the competition over mediation. While lawyers describe mediators as invading their realm of divorce practice, therapeutic professionals view mediation as a new field of knowledge which they are claiming as their own, in competition with legal professionals. Moreover, although elements of Coy and Hedeen's (2005) co-optation model were useful in describing the developing relationship between the divorce professionals, we found different strategies of resistance at each stage of the process. Acknowledgements This study was funded by a grant from the Israel Science Foundation, Grant no. 869, with supplemental funding by the Peleg-Bilig Center for the Study of Family Wellbeing and the Department of Interdisciplinary Social Science Studies at Bar-Ilan University. We are grateful to Lynn Mather who so generously shared her research materials with us, to Carol Seron, Mavis McLean, John Eekelaar, Avrom Sherr, Orna Deutch and Robert Dingwall for their lengthy discussions with us in the early stages of this study. We also thank Leslie Goldstein for her helpful comments on a preliminary version of this paper and Robert Dingwall whose suggestions as discussant of an initial draft of this paper at the Annual Meeting of the Law and Society Association in Pittsburgh, 2003, made all the difference. We thank our efficient research coordinator Yael Ronen, and our research assistants Efrat Meiri, Chen Cohen and Eldad Farkash. Notes 1. We have used the term help-care professionals interchangeably with therapeutic mediators to refer to those professionals from the fields of social work, education, psychology, marriage counselling, and related fields that have been involved in family mediation. 2. It has been said that divorce lawyers were the first members of the legal profession to adopt mediation because, as non-prestigious, low level practitioners, they were most vulnerable to the competition presented by family mediators (Keiser, 1999 Keiser, S. 1999. “Divorce mediation: paradigm change or colonized concept”. Ann Arbour, Michigan: The Fielding Institute. Unpublished PhD dissertation [Google Scholar]). See also Shamir (1993) Shamir, R. 1933–1937. Professionalism and the monopoly of expertise: lawyers and administrative law. Law & Society Review, 27(2): 361–97. [Crossref] , [Google Scholar] for a discussion of professional hierarchy and the competition for professional control. 3. Our sample included 60 taped interviews, 20 of each profession, but unfortunately, three tapes were inaudible. We thus now have 20 interviews with lawyers, 19 with mediators and 18 with lawyer-mediators. 4. There are disputes about what counts as mediation (Picard, 2001 Picard, C. A. 2001. The Many Meanings of Mediation: A Sociological Study of Mediation in Canada, Toronto, , Canada: Carleton University. Unpublished PhD dissertation [Google Scholar]). We did not define mediation, but accepted the testimony of professionals that they had mediated divorce cases. 5. Because there is no comprehensive list of either family lawyers, mediators or those lawyers who practice mediation in Israel, the following sources were used to compile the sample of lawyers: a list of lawyers who are members of the family law forum, a voluntary association of family lawyers, in the Tel Aviv area; a list of family lawyers provided by the Southern District of the Israeli Bar Association; lawyers advertising themselves as experts in family law in a commercial directory (‘Bursi’); the Yellow Pages listings of ‘lawyers’, from which we extracted the ones that advertised themselves as experts in family law; Israeli websites containing family law decisions; and a list of lawyers receiving family law cases from the legal aid section of the Ministry of Justice in Jerusalem and the South. The following sources were used for compiling the list of family mediators: a list of members of the mediators' forum of the Israeli Association for Family Therapy and Education for Family Life; a list of mediators who had been qualified by the Israeli Association for Family Therapy and Education for Family Life; a list of mediators employed by the Auxiliary Units of the Family Courts; Israeli mediation website ‘Sulcha’; the Yellow Pages listings of ‘marriage counsellors’, from which we extracted the ones that advertise themselves as mediators; lists of graduates of mediation courses from two mediation centres; lawyers advertising themselves as experts in mediation (in general) in a commercial publication (‘Bursi’); lists of lawyers who have studied mediation and are registered with the Mediation Center of the Jerusalem District of the Israeli Bar Association; and a list of lawyers who actively practice mediation and receive court referrals through the Mediation Center of the Jerusalem District of the Israeli Bar Association. The four regional divisions are those conventionally used for legal and social science purposes: Jerusalem (including surrounding areas), South, North, and Central (Tel Aviv and surrounding areas). We only examined Jewish practitioners because marriage and divorce are under the jurisdiction of religious courts, and thus each sector experiences different problems. 6. The relatively high response rate was due to the fact that the questionnaires were administered in person by one of seven researchers who remained with the professionals until it was completed, after an initial contact by letter and an appointment set up by phone. 7. The questionnaire and interview schedule were refined after a pilot study with nine practitioners, three of each professional group. 8. Moslem, Christians and Druze have their own religious courts. 9. Rabbinical Courts are seen as favouring men, and Civil Courts as advantaging women. In fact, women are at a disadvantage no matter which court favours those matters for which there is concurrent jurisdiction because it is the husband who must voluntarily grant the bill of divorce—the get—through the Rabbinical Courts and according to Rabbinical Law (Halperin-Kaddari, 2003 Halperin-Kaddari, R. 2003. Women in Israel: A State of Their Own, Philadelphia: University of Pennsylvania Press. [Google Scholar]; Raday, 1992 Raday, F. 1992. Israel: the incorporation of religious patriarchy in a modern state. International Review of Comparative Public Policy, 4: 209–25. [Google Scholar]). 10. About 2.2% of cases involving children are adjudicated (Hacker, 2006 Hacker, D. A legal field in action. Paper presented to the Law Faculty Seminar. April52006. Israel: University of Haifa. [Google Scholar]). 11. Previously, family matters were handled by both the Magistrates and higher level District Courts, which served both as a court of appeal and a court of first instance. Today, appeals of family court matters are still heard by the District Courts, although there are specific judges in the District Court who handle family matters. 12. For example, the Family Court Law specifically permits the court to disregard the regular civil rules of procedure, and to employ whatever procedure promotes justice (Family Court Law – 1995, section 8(a)). 13. This situation is currently being re-examined by the National Centre for Mediation and Dispute Resolution (NCMDR) (Zamir, personal communication). 14. The numbers in brackets identify the interview number from our corpus. 15. Information taken from < http://www.justice.gov.il/MOJHeb/Gishor/News/Gishur + Hova.htm >. The committee investigating the possibility of instituting mandatory mediation has suggested mandating an information meeting which will present the couple with information about the advantages of mediating the dispute, prior to filing any petitions to either the Rabbinical or Family Courts. This decision was taken in 2006, and thus was not included in our questionnaires or interviews. 16. Courts Regulations (Mediation) – 1993; Courts Regulations (Appointment of a Mediator) 1996. 17. Official recognition of the NCMDR was granted in the 2003 Amendment to the Courts' Regulation (Appointment of a Mediator), although it essentially granted formal status to current practice in the court referral of mediators. Information about both the formal developments and informal ramifications was provided by Ronit Zamir, the Manager of the MCMDR, in a telephone interview on 16 June 2003. 18. Some of the NCMDR staff are social scientists, in charge of evaluating the Center's work and programs. 19. This was noted by a number of mediators in the interviews (e.g., 612, 735) and is a trend that has been has also been indicated elsewhere (e.g., Hofstein, 1997 Hofstein, D. 1997. Ethical guidelines for attorney-mediators: are attorneys bound by ethical codes for lawyers when acting as mediators. Journal of the American Academy of Matrimonial Lawyers, 14: 267–312. [Google Scholar]; Laflin, 2000 Laflin, M. E. 2000. Preserving the integrity of mediation through the adoption of ethical rules for lawyer mediators. Notre Dame Journal of Law, Ethics and Public Policy, 14: 479–523. [Google Scholar]; McAdoo & Hinshaw, 2002 McAdoo, B. and Hinshaw, A. 2002. The challenge of institutionalizing alternative dispute resolution: attorney perspectives on the effect of rule 17 on civil litigation in Missouri. Missouri Law Review, 67: 473–572. [Google Scholar]; Wise, 2001 Wise, M. 2001. Separation between the cross-practice of law and mediation: emergence of proposal model rule 2.4. Hamline Journal of Public Law and Policy, 22: 383–424. [Google Scholar]). 20. The courses must be given by Mediation Agencies or Centers that have been accredited (previously by the Advisory Committee and now by the NCMDR). 21. In February 2000, the Israel Mediators Association was founded as a voluntary association for individual mediators and mediation agencies with the purpose of furthering mediation in Israel, and “promoting and sustaining uniform professional binding criteria” (<http://www.sulcha.co.il/>, last visited October 2006). Founding members included mediators who were also on the Advisory Committee. However, despite the growing number of graduates of mediation courses, as of 2006, there were only 75 paid up members in this organization (Information taken from < http://www.sulcha.co.il/Content/NewsMain.asp?news_id = 1852andsivug_id = 2>). 22. It should be noted that institutions that train mediators are also the same agencies that offer mediation services, and the heads of these are also the main proponents of mediation who have been active in the development of the professional organization and the website. The training of mediators seems to be a more lucrative field than the actual practice of mediation, at least in family law. 23. In addition to higher educational standards, mediation agencies have begun extending their services to areas beyond the resolution of individual disputes, and to offer courses in improved communication and negotiation. These trends and the increased educational demands are outlined in < www.sulcha.co.il >, the Israeli mediation Portal (last visited October 2006). 24. Zamir, personal communication. The fact that lawyers often believe that mediation is an extension of traditional family practice makes all mediation training somewhat superfluous in their view. See also Hacker (2006) Hacker, D. A legal field in action. Paper presented to the Law Faculty Seminar. April52006. Israel: University of Haifa. [Google Scholar]. 25. See < http://www.sulcha.co.il/Content/NewsMain.asp?news_id = 1853andsivug_id = 2 > (last visited October 2006). There is no doubt that the extended training and enhanced programs provide a source of revenue and power for the mediation training agencies. 26. This is without those who identified as lawyers or solely as mediators. Six of those we categorized as therapeutic mediators because they practiced mediation and were not lawyers, did not fill in any profession. 27. Other professions included educational directors, caretakers, organizational consultants, translators. 28. Sarat and Felstiner (1995) Sarat, A. and Felstiner, W. F. 1995. Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process, New York: Oxford University Press. [Google Scholar] found that the divorce lawyers in their study emphasized this type of knowledge. 29. A number of studies have challenged the notion of mediator neutrality and have claimed that mediation substitutes the covert influence of the mediator for the open decisions of judges (Conneely, 2002 Conneely, S. 2002. Family Mediation in Ireland, Dartmouth: Ashgate. [Google Scholar]; Dingwall, 1988 Dingwall, R. 1988. “Empowerment or enforcement? Some questions about power and control in divorce mediation”. In Divorce Mediation and the Legal Process, Edited by: Dingwall, R. and Eekelaar, J. Oxford: Clarendon. [Google Scholar]; Greatbatch & Dingwall, 1999 Greatbatch, D. and Dingwall, R. 1999. “Professional neutralism in family mediation”. In Talk, Work and Institutional Order: Discourse in Medical ,Mediation and Management Settings, Edited by: Sarangi, S. and Roberts, C. Berlin: Mouton de Gruyter. [Google Scholar]). 30. We asked the respondents to indicate the three most important goals. When we combined the three most important goals, the proportion of practitioners who chose settlement, conflict reduction and client oriented goals was 52%, 18% and 30% for the lawyers, 33%, 51% and 15% for mediators, and 50%, 26% and 24% for lawyer-mediators, respectively, which are very similar to the results reported for the single most important goal. We presented the results for the most important goal because it is easier to describe. 31. It cannot be that the lawyer replied in a socially desirable way when he indicated that his goal was settlement because this was the answer given in the questionnaire that he filled out anonymously, which we could identify only by the number on the questionnaire. In fact, had social desirability been an issue, we would expect that he would define success as achieving a settlement to the interviewer, while perhaps giving his true response in the questionnaire. 32. For example, lawyer 722 distinguished between the adversary goals of young lawyers compared to their more veteran colleagues who knew how and when to settle. However, lawyer-mediator 614 said that veteran family lawyers are more fight oriented, while their newer colleagues know how to work with other methods. 33. In our interviews, none of the professionals discussed the problematic implications of regarding mediation as a type of law practice, an issue that has been debated in American courts because it involves problems about confidentiality and professional responsibility (e.g., Hofstein, 1997 Hofstein, D. 1997. Ethical guidelines for attorney-mediators: are attorneys bound by ethical codes for lawyers when acting as mediators. Journal of the American Academy of Matrimonial Lawyers, 14: 267–312. [Google Scholar]; Laflin, 2000 Laflin, M. E. 2000. Preserving the integrity of mediation through the adoption of ethical rules for lawyer mediators. Notre Dame Journal of Law, Ethics and Public Policy, 14: 479–523. [Google Scholar]; Menkel-Meadow, 1999 Menkel-Meadow, C. 1999. Ethics and professionalism in non-adversarial lawyering. Florida State University Law Review, 27: 153–92. [Google Scholar]; Wise, 2001 Wise, M. 2001. Separation between the cross-practice of law and mediation: emergence of proposal model rule 2.4. Hamline Journal of Public Law and Policy, 22: 383–424. [Google Scholar]; McAdoo & Hinshaw, 2002 McAdoo, B. and Hinshaw, A. 2002. The challenge of institutionalizing alternative dispute resolution: attorney perspectives on the effect of rule 17 on civil litigation in Missouri. Missouri Law Review, 67: 473–572. [Google Scholar]). To our knowledge, no debate about this issue has arisen in the Israeli context. 34. Kritzer (1999) Kritzer, H. 1999. The professions are dead, long live the professions: legal practice in a post- professional world. Law & Society Review, 33(3): 713–59. [Crossref], [Web of Science ®] , [Google Scholar] has dealt extensively with the implications for the professions of the advances in information technology, that undermine claims to exclusive professional knowledge, while Susskind (1996) Susskind, R. 1996. The Future of Law—Facing the Challenges of Information Technology, Oxford: Clarendon Press. [Google Scholar] envisages the development of new types of legal practice and professionals as a consequence of these technological changes, including the supplanting of some legal services by less expensive para-professionals (also Seron, 1996 Seron, C. 1996. The Business of Practicing Law: The Work Lives of Solo and Small-Firm Attorneys, Philadelphia: Temple University Press. [Google Scholar]; Sherr, 2000 Sherr, A. 2010. Professional work, professional careers and legal education: educating the lawyer for. International Journal of the Legal Profession, 7(3): 325–42. [Taylor & Francis Online] , [Google Scholar]; Rostain, 2004 Rostain, T. 2004. “Professional authority: lawyers and the constitution of professional authority”. In The Blackwell Companion to Law and Society, Edited by: Sarat, A. Oxford: Blackwell Publishing. [Google Scholar]). 35. Garfield (2002 Garfield, F. R. 2002. Unbundling legal services in mediation: reflections of a family lawyer. Family Court Review, 40(1): 76–86. [Crossref] , [Google Scholar], p. 81) has suggested a similar role for lawyers as “agents of reality”, deflecting clients from “unrealistic” demands, which mediators prefer not to do themselves in order not to impinge on their image of neutrality. 36. On the other hand, at least one mediator (740) mentioned mistakes made by lawyers in drawing up agreements because they held out for what were essentially untenable or hollow victories. 37. The availability of legal advice is often mentioned in advertisements for family mediation services. 38. Surprisingly, at least one family mediator (743) assumed that this requirement already existed. 39. The participants, the mediator, one in-house lawyer and at least one other lawyer.

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