A Moral Agreement vs. a Legal Agreement

{4:24 minutes to read}  In May, I attended the annual conference of the New York State Council On Divorce Mediation. I have been a member since 2004, served on the board of directors for 6 years, co-chaired the annual conference for 2 years, co-chair a monthly Long Island peer group and continue my engagement by serving on the conference and membership committees. I love this organization and am an active and devoted member.

One of the main reasons for this is that the members of the Council are a robust and engaged group of divorce and family mediation professionals — many of whom have become not only colleagues but dear friends as well. We all share the knowledge that we’re in the trenches doing this difficult, enlightened and necessary work, and are there for each other in total support and solidarity.

At this year’s conference we had a panel discussion moderated by one of our distinguished and beloved members, who is a past president and continues a very active engagement on the Council.  The panel was also populated by four of our very own experienced mediators — two of whom are attorneys and two come from the mental health profession. The program was a plenary — which means that there were no other competing workshops. It was a full house.

The topic was: “Debate: Is There a Place for Consulting Attorneys in Divorce Mediation?” Each panelist was asked the question and given an opportunity to share their thoughts, philosophy, and opinion before the debate was open to the members.

We were off to a rousing start when the first speaker, who is also a past president, a licensed clinical social worker, licensed marriage and family therapist and a passionate advocate for mediation, kicked off his view by summing it up in this way (and I’m paraphrasing here): “I think we need to look at the ultimate agreement we help the parties get to, not so much as a legal agreement, but rather a moral agreement. If we do that, then the moral agreement by dint of its virtue IS a legal agreement. Let’s stop thinking of legality when we are dealing with families.”

That whole concept really struck me and I haven’t been able to stop thinking about it. Of course, once the agreements (with a small “a”) have been made, a legal document ultimately is drafted. However the notion of mediation as a moral pathway to that document was something I hadn’t quite thought about in that way.

If by moral, we mean fair and just, ethical and decent to the clients, then they have achieved something that, on its merits, would be a legal agreement. I know that one could argue that morality is a subjective affair, that what is moral to one person is not moral to the other, etc. etc. and we could debate this until the cows come home.

But I am a firm believer in common sense, the golden rule, the 10 Commandments, and The Four Agreements. And although in this crazy world, we seem to have gotten away from Superman’s truth, justice and the American way… we know when something is right and when something is wrong. Our clients know this too. They make their decisions based on what THEY believe is fair, just, ethical, and decent for themselves and what they can ultimately live with. THEY choose what is moral because if it is not, they simply won’t do it.

Legal shmegal. Morality first.