The Mediator’s Role in Family Mediation: Part 2

The Mediator's Role in Family Mediation

The Mediator’s Role in Family Mediation

…Continued from Part 1:

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.  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.

Communication

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.

Exchanging Perspectives

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 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.

Generating Options

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.

Children

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 in flexibility.  On the other hand, mediation provides an opportunity for parents to structure their own unique parenting plan.

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

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.

Results

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 potential for solutions that may go beyond remedies which 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 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 in 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, 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.

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Scott Van Soye
Managing Editor - Scott Van Soye is the managing editor of ADR Times. He is also a full-time mediator and arbitrator working with the Agency for Dispute Resolution with offices in Irvine, Beverly Hills and nationwide. He is a member of the California Bar, and practiced real estate, civil rights, and employment law for over twenty years. He holds an LL.M. in Dispute Resolution from Pepperdine University, where he is an adjunct professor of law. He welcomes your inquiries, and can be reached at [email protected] or (800) 616-1202, Ext. 721

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