Mediation is an opportunity to work out differences between people in a non-adversarial arena. One of the things that sets mediation apart from legal proceedings is that mediation is an arena for the couple in dispute to directly communicate with a neutral third party present. In a courtroom, only the lawyers get to communicate - they represent the couple, who do not get to speak freely other than as a witness in response to a question from an attorney. The mediator does not function as an attorney who gives advice; nor does the mediator function as a judge who hands down rulings. This person is a trained, task-oriented facilitator. Mediation training is now open to attorneys, mental health counselors and certified public accountants. It was a field that was primarily dominated by attorneys. In order to shift from a punitive legal orientation, more mental health counselors need to join the ranks of mediation. The following is a good example of why this is necessary in order to cause a contextual shift.
Case example
Debbie and Harvey, each with their own legal representation, walked into the divorce mediatorÕs conference room. They were there to revisit the issues of child support and to deal with some financial matters that had arisen over the ex-wifeÕs moving out of state. There were damages and disbursement issues regarding their three children; close to a year of an upsetting long-distance legal battle; unresolved past emotional marital upsets; and probably a few more things you could throw into the pot. These people had been divorced for almost two years!
Debbie and her attorney sat on one side of the conference table; Harvey and his attorney sat on the other. At the head of the table sat the Ôneutral partyÕ, the state certified mediator. In the corner sat an observer, a mediator in training. All parties present had given their permission for the observer to be there.
Setting up the process
The mediator started out by introducing herself, handling the logistics, letting the couple know that this is an informal procedure, discussing communication rules within the session, confidentiality and other rules that assist the mediator in managing the process. This is done so that clients in conflict know the procedural framework and feel the safety of this non-official neutral opportunity. It can become official when they reach an agreement, but it is afar cry from being in the courtroom in front of a judge.
This mediator established that there was a joint commitment of good faith. This means that each part is willing to make an effort to resolve the dispute today, i.e. to reach a settlement. Then the mediator clearly established her role as being a facilitator in assisting the couple in finding solutions. Finally, at the end of the mediatorÕs opening statement, she asked if the couple had an questions.
The process
Each attorney had a chance ot give their opening statements. since this wa a post-divorce situation, the procedure and content were somewhat different from a standard divorce mediation. Then the mediator took the lead and established what issues were already agreed upon. She also reiterated that the entire session was confidential and the discussions would not leave the room. What transpired after that was basically two attorneys arguing with each other over money. This took quite a lnog time and was also done using many legal terms. The observer wondered whether the couple actually understood what the attorneys were saying. The financial issue because a roadblock where both parties stuck steadfastly to their position. At that point, the mediator called a caucus with the ex-wife and her attorney.
A caucus is a private meeting between some of the parties and is called at the mediatorÕs suggestion. Others in the room can request a caucus but it is up to the mediatorÕs discretion if one is held. Attorneys and their respective clients can meet separately whenever they need to and this is different from a caucus called by the mediator.
After spending over 20 minutes with Debbie and her attorney, the mediator brought back several proposals to Harvey and his attorney. She then spent about 15 minutes with Harvey and counsel creating a counter proposal. She took back this counter proposal to Debbie and counsel. In this caucus they reviewed that information and decided to reconvene. The decision to reconvene came about because time was running short, and they were still at an impasse over several issues.
The mediator addressed why they were back together in one group. She also acknowledged how much territory had been covered. They had agreed upon certain issues but were still deadlocked on others. She pointed to the big picture, asked if they were open for compromise, and did her best to create an agreement. She even worked directly with the couple trying to elicit a viable compromise. One side moved off of their position bu the other side refused. At this point it was very late and they decided to reconvene two days later. Debbie was leaving town shortly so they had clear time parameters.
Observer involvement
I was the observer and I met with the mediator after everyone left. We discussed the case at length. She answered many of my questions regarding the legal terminology and suggested that my Ôperceived inadequaciesÕ in this area could probably enhance the coupleÕs understanding also. I acknowledged her ability as a mediator and pointed to the things I thought she did well. They I made some suggestions as to how to get through the deadlock. I asked her to speak with one of the attorneys in particular to find out exactly what was upsetting her and to deal with it if she could or to apologize if necessary. Then I suggested that she address the underlying upset between the couples, with them in the room, so they could each get a chance to communicate exactly what was bothering them. This would help clear the air and assist her in separating the issues from the emotions. I also suggested that she focus the couple on their children and what would support their childrenÕs best interest and their future co-parenting relationship.
Second session
When we reconvened she addressed these issues. She also had spoken to each of the attorneys the day before this meeting. I arrived late. She stopped the proceedings to bring me up to speed and to acknowledge my contribution to what had happened. The entire tone of the mediation had changed from anger and adversarial to one of mutuality and cooperation. She had done an excellent job in implementing my suggestions. She asked for my input as needed. Although DebbieÕs counsel was present, she was able to work more directly with the couple to reach an agreement. The couple even left the room once to speak privately over some final issues. Together they drew up a new document. HarveyÕs attorney was consulted by phone and assisted in drawing up and approving the final document which the couple signed. They were able to talk amicably with one another and were both reasonably satisfied with their new agreement. They even hugged and kissed each other good-bye as we were all leaving. I let them know how moved I was at their willingness to negotiate and to focus on their childrenÕs well-being instead of their own individual pettiness. It was truly a privilege to be a part of this process. I felt in some way I had made a difference in these peopleÕs lives and in the mediatorÕs future ability to mediate more effectively.
Mediation as an option
I encourage all of you who are working with divorce to explore the option of mediation, both for your clients and for your own information or career expansion. The more we are able to shift the legal conversation to a human conversation, the faster we can save the lives of the children and the adults involved. The trauma involved in a strictly legal and adversarial divorce is awful. Please support, in your speaking and in your actions, the paradigm shift from fighting and hatred to negotiating, mediating and creating a future that works for all parties involved.