The Mediator’s Role in Family MediationYour longtime client Bob and his wife Sue are getting a divorce. Sue has had enough of Bob’s bad temper. Though most of your practice involves small business litigation and personal injury cases, you have handled several divorce cases and are conversant with the legal issues.
You often arrange and participate in settlement meetings for clients. In these meetings, each lawyer sits together with his or her client in a room separate from other parties and discusses settlement demands, offers, and counteroffers. Then the lawyers meet in yet another room. Clients never meet face to face, but by a slow process of reciprocal concessions, the parties narrow their differences and usually can reach a settlement.
Your track record of achieving resolution this way is good. Therefore, you don’t need to consider mediation, which is an unnecessary expense. At least, that’s what you tell Sue’s lawyer when she suggests family mediation.
Does this scenario sound familiar?
Sometimes lawyers respond like this when family mediation is suggested. It’s understandable. If you’re a lawyer, it’s a good bet you have been through settlement procedures like the one described above many times, with the assistance of a neutral in court affiliated settings, or simply with the cooperation of opposing counsel. The process is familiar and comfortable.
But there are several significant differences between this kind of settlement effort and divorce mediation, which is the focus of this article.
In the situation discussed above, the clients and their lawyers meet in a neutral place. Usually, each party is assigned to a separate room. There each lawyer talks to his or her own client and then ventures out to discuss positions with opposing counsel. Without a neutral, the process becomes a negotiation through the buffer of the attorneys. If there is a neutral, he or she moves between the various participants, leading some to call the process “shuttle diplomacy.” There is never any direct communication between the clients.
Family mediation, on the other hand, usually requires the parties to the dissolution to meet face-to-face, often without their lawyers, but with a trained family mediator present. Of course, this only happens after required pre-mediation screening has been done to make sure the case is suitable for mediation and that neither party is put in danger by a face-to-face meeting. Given the prevalence of domestic violence, mental illness, substance abuse, and other factors that may make mediation inappropriate, many jurisdictions make screening mandatory for domestic cases. Bob’s “bad temper” may be a sign of something worse.
Mediators often meet with the parties without their attorneys during the family mediation process. But lawyers still have a very important role to play in family mediation. Mediation does not eliminate the need for each party to have her or his own lawyer. (More later about the lawyer’s role.)
Divorce is ranked second on the list of stressful events in one’s life, the first being death of a spouse. This is an emotional time for the parties. However, the only purpose of most settlement meetings is to resolve the outstanding legal issues in the divorce. Emotions and post-divorce dynamics are rarely factored into them.
But if the parties have children, they must consider more than just reaching a settlement. The parties need to recognize that like it or not, they will have a post-divorce relationship. This relationship will be tested again and again, even after the children leave home and are out on their own. To their children, both parents will always be family, divorced or not. There will be birthdays, graduations and other school-related activities, weddings, grandchildren, funerals, and other family events that will inevitably demand some contact between the divorcing or divorced parties unless one or both of them are so set on avoidance that they are willing to sacrifice time with family and friends to achieve it.
Civility and cooperation between the parents go a long way toward reducing the stress and anxiety their children experience. As parents cope better, their children do too.
Even when there are no children, mediation can still be useful when the parties have decided to dissolve their relationship. Breaking an intimate bond is a painful, stressful process likely to cause problems in communication a mediator can address.
Constant fighting, arguing, and blaming in a marriage or committed relationship generally predicts more of the same during its dissolution. The consequences of such behavior can include protracted litigation, high costs, and significant damage to the emotional well-being of the entire family. By the time they hire lawyers the parties dislike each other, are communicating poorly, are highly distrustful, and are fearful of further emotional pain.
It does not have to be this way. People can choose to separate cooperatively. Resolving our disputes through negotiation is a part of everyday life. But family mediation is more than just bringing in a mediator to help the parties reach an agreement.
Mediation has been defined as:
“…a procedure in which a mediator facilitates communication between the parties concerning the matters in dispute and explores the possible solutions to promote reconciliation, understanding, and settlement.”
Settlement is only one purpose of mediation. Reconciliation, Communication, and understanding are others.” Reconciliation,” in this context, does not (necessarily) mean “getting back together.” It can mean helping the parties negotiate a workable way of moving forward as they begin living apart.
Mediation is a voluntary, non-adversarial process involving a trained neutral. The parties, not the mediator, decide the outcome. The mediator has no power to render a decision or to force the parties to settle. The voluntary nature of the settlement the parties reach means it is more likely to be carried out without the need for external enforcement or further litigation.
Steps in Family Mediation:
Generally, family mediation is conducted in several steps:
Pre-screening and initial meetings First the mediator must perform pre-screening to ensure the case is suitable for mediation. After the neutral pre-screens the parties, he or she should encourage them to each retain separate counsel (if they are unrepresented). He or she then typically meets with the lawyers only. Thereafter is the first joint meeting with the parties, then an individual meeting with each party.
The purpose of these meetings is to explain the process to the participants and modify it if necessary, to identify the legal and other issues to be resolved, the desired outcome or outcomes, and finally to determine the barriers to and incentives for settlement.
Repeat meetings with parties will be necessary to meet with the parties repeatedly. These meetings serve to facilitate communication, uncover hidden issues and emotions, listen to their stories, perform reality checks and move them toward their chosen reconciliation.
In interviews with children, in some cases, it is appropriate to interview the children separately from their parents. When the children are older, courts will often take their custody and visitation preferences into account. At any age, their individual needs and best interests will be a core concern and must be addressed by any eventual agreement
Meeting with new partners. If new partners are involved, the mediator should meet with them. They are part of the new reality. They may be causing conflicts or have a solution to them. Their presence in the family may affect the parties’ legal obligations, and any bad habits will affect custody determinations.
Repeat meetings with lawyers, the mediator will meet with both lawyers from time to time to clarify remaining legal issues.
Agreement when the parties reach an agreement, a Memorandum of Understanding is prepared and sent to their lawyers to review with the clients. Once everyone is content with the Memorandum of Understanding, it becomes the Separation Agreement.
The Lawyer’s Role in Family Mediation
Unlike other types of mediation, lawyers do not usually attend family mediation sessions with their clients. Mediation changes the role of lawyers from negotiators to legal consultants. The parties become the primary negotiators in mediation.
The role of lawyers is to advise their clients throughout the mediation process on their legal rights and obligations. The parties cannot make good decisions without competent legal advice. The lawyers will also review the Memorandum of Understanding and the Separation Agreement.
A mediator does not take sides and does not pass judgment on the parties or their problems.
The function of the mediator is to manage the negotiation process for the parties, to keep them talking, to help them better understand their problems, and reach a solution that both can accept. The mediator keeps the communications open and focused. The mediator helps the parties address conflicts constructively and creatively, so they can move forward into a new, less hostile future.
The mediator sets the tone for the negotiations by creating an atmosphere conducive to discussion. In ordinary settlement meetings, posturing, threats, ultimatums, and other competitive behavior is rampant. The mediator will discourage intimidation, threats, bottom-lining, and similar tactics, encouraging the parties to take a more cooperative, win-win approach to their future.
Because the parties have usually lost trust in each other, dealing with distrust is one of the most challenging tasks for a mediator.
The emotional impact of broken family relationships cannot be overstated. Lawyers trained in an adversarial system in which emotion is largely irrelevant will often miss the emotional significance of issues that cause the most grief and about which a party becomes most intransigent. Family mediators focus on the emotions the parties are experiencing, which can be a significant obstacle to settlement.
Mediation does not mean “giving in” or “giving up”. Mediation participants are not “nicer” than those who litigate. The difference is the process: in a positive, solution-focused environment, the parties find practical solutions that work for both of them. The court is a rights-focused environment in which someone usually loses.
Mediation can be effective even when conflict and anger run high, and communication has not been good. Some parties are concerned that they will not be able to negotiate and somehow will lose. But with a trained mediator, the parties can trust that they are not going to be abused or taken advantage of as they reach a mutually acceptable solution.
Settlement meetings rarely involve direct communication between the parties. In family mediation, the parties talk to each other with the mediator present. Direct negotiation between the parties generally expedites conflict resolution.
It is important for each party to understand the perspective of the other, even if they do not agree with it. Therefore, in mediation, each party relates the issue as they see it. The mediator probes into the underlying and often unspoken issues. The underlying issues or unexpressed emotions may be the deep-rooted reason for the party’s stand. The mediator encourages parties to talk about their feelings. When the feelings have been expressed and heard, the parties may be more willing to talk about a way to resolve the issues.
The aim of settlement meetings is to make a determination of rights. Usually, a settlement is reached based on the law and the lawyers’ interpretation of the facts, or the strength of the evidence and the projected trial outcome. The law is not trying to have each side understand the position of the other. Very little is said in settlement meetings about underlying issues.
Exploring Interests and Needs
A position is what a party wants or demands. An interest is why a party has taken a particular position. Much of the mediation process is devoted to exploring the parties’ interests, rather than merely attacking positions, which often change. A focus on interests alters the way the dispute is characterized, analyzed, and processed. An agreement is unlikely to result unless the discussion moves beyond positions stated as rights and explores the causes of the dispute, the expectations of each side, and what is critical to each party seeking a negotiated resolution.
Lawyers often excel at developing evidence that supports their positions, but flounder when it comes to developing settlement options not based on legal rights or winning
Mediation recognizes that both parties have legitimate needs and helps develop options that will successfully reconcile those needs to the satisfaction of both parties. A mediator can explore available options that have not been previously considered, and might not be available in court.
Once the parties have identified a range of options, they can begin to negotiate which ones could be acceptable. Here the mediator often facilitates communication, tests realities, and offers encouragement when negotiations temporarily falter.
Family mediation focuses on plans for the future of the children, rather than on the parents’ conflicts and grievances.
In settlement meetings involving custody and visitation, for example, agreements generally focus on legal rights. Negotiations between lawyers do very little to clarify ongoing parental responsibilities or build flexibility. On the other hand, mediation provides an opportunity for parents to structure their own unique parenting plans.
Settlement meetings do not usually include the children. Often the mediator will meet privately with the children (with the consent of both parents). Children may have their own questions and concerns and may have needs that are quite different from their parents’ needs. These should be identified and factored into a resolution.
Mediation can also help the parties explain the separation to their children in a constructive fashion. This is not done in a rights-oriented settlement meeting.
New partners are not usually included in settlement meetings Though the new partnership may have legal consequences, new partners are not parties and have no legal rights. But their intrusion into the family dynamic can be a highly explosive subject (for the parties and for their children) if it is not dealt with.
Often this topic is discussed in mediation.
The legal system concerns itself with the facts, and the results will often be black and white. In mediation, on the other hand, the parties are sometimes able to reach a solution that is more creative than that which a court would impose.
Parties need to consider their future relationship. This is where mediation can be a big help. In situations where the parties wish to preserve or improve their relationships, mediation is more likely to create a forum for frank exchange that leads to a better working association. Ignore issues and they will persist. Using more formal means of resolution increases costs guarantees stress and limits available remedies.
Benefits of Family Mediation versus Settlement Meetings:
Family mediation has several advantages over standard settlement meetings. For example :
* Negotiations take place with the assistance of a trained neutral mediator.
* Both parties are made to feel safe and comfortable in each other’s presence.
* Family mediation allows the parties to take charge of their lives and design a plan for their future that will be good for themselves and for their children.
* Family mediation facilitates, promotes, and improves communication between the parties, who will continue in some relationship.
* Hard bargaining tactics are avoided.
* The mediator helps the parties to exchange views and information.
* The process helps to reduce conflict and hostility between the parties.
* Mediation encourages cooperation and trust.
* Family mediation allows the parties the opportunity to express their feelings associated with ending the marriage.
* In family mediation, the position of the other party is not filtered through lawyers.
* In family mediation parties have more control over the outcome.
* Mediation increases the potential for solutions that may go beyond remedies that can be ordered by the court.
* Mediated settlements generally work better because the parties worked cooperatively to arrive at the agreement themselves, rather than negotiating through their lawyers.
* Mediation helps preserve family relationships and friendships; a settlement meeting will not tell the parties how to do that.
* Family mediation can make the termination of a relationship more amicable and less traumatic.
* The mediation process empowers the parties to solve their own dispute and find a compromise that works for them.
* A mutually acceptable solution lets both parties be winners and respect each other.
* The parties can deal with the issue of new partners.
* Family mediation can and should make post-divorce relations easier for the parties and extended family
* Family mediation provides a way for families splitting into parts to learn to deal with the changes in roles, duties, and opportunities and to face those changes with emotional balance.
Added Benefits of Mediation Where There are Children:
*Mediation focuses attention on the children and on doing what is best for the children.
*Mediation minimizes the harmful effects of divorce and separation on children
*While courts deal with custody and visitation, mediators deal with parenting plans. Parenting is a lifelong commitment that transcends court orders.
*Agreements reached through mediation can take into account the personal needs of children in detail.
*Mediation may involve children when their input is appropriate and helpful.
*Children of parents who mediate adjust better to their .’ divorce than do children of parents who do not In general, the children are happier, more secure, more reassured, and less distressed.
Family mediation presents a cooperative model for addressing future changes in the lives of the children and establishes a sound foundation for post-separation parenting arrangements.
Advantages of Family Mediation for Lawyers:
There are also advantages of family mediation for lawyers. Lawyers will have clients who are generally more satisfied by the experience of crafting their own resolution. Satisfied clients are more appreciative of the lawyer’s services and spread the word. This causes more clients to seek out that lawyer for similarly satisfactory results. Lawyers representing clients in mediation are more likely to be paid their full fee.
On the other hand, lawyers who go the traditional route of settlement meetings and litigation often do not bill their full fee or do not collect all the fees that they do bill for. Thus, while lawyers may bill fewer gross dollars to an individual client, they collect a higher percentage of what is billed and get more business as a result of satisfied clients.
So You Think Mediation Might Be Worth a Try.
Statistics indicate that over 80 % of all mediations result in settlement. This is true even where all prior attempts at settlement have failed, where the parties were pessimistic about the prospects of settlement, and where the parties have spent substantial amounts of time and money preparing for trial.
With such a success rate, it is wise and relatively inexpensive to try mediation. You have little to lose.
In those few cases where no agreement is reached, the parties still retain the flexibility to walk away from mediation and go to or continue with, the court. Or they can try other alternative dispute resolution processes. Even where no agreement is reached the parties will have learned valuable communication and cooperation skills that will serve them well in the future.