Your 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, 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 sigh 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 goes 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 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.
Interviews with children, in some cases, it is appropriate to interview the children separately from their parents. Where 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 the 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 the 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.
Continued in Part 2… (click for the conclusion of the mediator’s role in family mediation)