Divorce and Family Mediation
WHAT IS MEDIATION?:
Mediation is a process in which people or groups who are in conflict, can work together to arrive at a mutually acceptable resolution. The mediator is a person who facilitates this process. He or she is neutral and not involved with anybody in the dispute.
In this process, the parties, with the help of the mediator, identify their interests, prioritize their needs and find the best ways of communicating these interests. Conflict in life is normal....and, of course, it is very normal for people who are ending a marriage. Yet, we are often frightened of conflict, whether we can manage our emotions within it and whether we will come out a “loser.” These concerns do not have to become reality, however, and with a trained and skilled mediator, the individuals can negotiate through their conflict to a mutually acceptable result.
A mediator is a “communication manager.” People in conflict have usually fallen into mistaken and destructive habits of communication and misinterpretation of the other’s meaning and motives. The mediator is able to identify these communication “gaps” and guide the individuals through this thicket. The goal is clarity and the lessening, or elimination, of conflict based on misinterpretation.
A mediator is a “negotiation coach.” Many of us have little experience with negotiation and so the process causes great and understandable anxiety. The mediator helps each person understand that the negotiation process is not a personal insult to either and that compromise of trust, especially early in the process, is understandable. Step-by-step, the participants work toward a re-establishment of sufficient trust to allow them to negotiate and implement a settlement - which is critical, especially when parenting is involved.
A mediator is a “negotiation coach,” also, in that he or she guides the participants away form a “zero-sum,” win-lose attitude and toward the interest-based negotiation model. Rather than become entrenched in positional bargaining stances, participants are encouraged toexplore and describe their underlying interests. The classic Getting to Yes by Fisher, Ury and Patton, shows how this approach can lead to meaningful, mutually satisfactory results.
A mediator is a “protector of the process and the participants.” He or she will assure that neither party will feel threatened or abused. Everything said within the mediation is confidential and cannot be used at a later time to injure the other person or damage their interests in the legal dispute if mediation is unsuccessful.
DIFFERENT APPROACHES TO MEDIATION:
Many lawyers prefer the “settlement conference” model of mediation. Here, each participant, with their lawyer (or alone if unrepresented) sits in a separate room and the mediator shuttles between them, bringing offers and counter-offers, with the intention of moving the parties to a settlement. The goal is settlement. It can take a half day. It can take all day. Almost always, with a skilled settlement manager (mistakenly termed a “mediator” by lawyers), the parties will arrive at a settlement. It is much less frequent that these outcomes will feel good to people. The pressure of the lengthy process and the absence of any time or opportunity to reflect and “get their minds around” the settlement will usually result in uneasiness and “buyer’s remorse” in the hours, days or weeks following the settlement conferences. It is axiomatic that most people come away from these settlements more inclined to dwell on what they lost or gave up than on what they gained. They are continually reminded that the alternative to settlement is a horrible, expensive legal battle and so they are pressured into a settlement. This is not conducive to the kind of resolution which the parties can comfortably honor and work together to implement, without doubt or resentment.
Mediation, however, is intended to bring disputants to a resolution which more closely aligns with their needs. It is important in most cases that people be allowed to communicate directly with either other in an environment of safety. One obvious reason for this is that when the case is over, the lawyers and mediator will be gone, but the individuals will still be in each others’ lives and will need to learn how to communicate in a healthy and mutually respectful way.
Many mediators will “caucus” with the parties - meeting with them outside of the presence of the other - before or in the course of the mediation. I prefer not to do this in the early stages of the mediation because my training and experience have led me to conclude that this impairs the parties’ trust in my true neutrality. If Bill and Susan are meeting with me individually from the outset, Bill will be wondering, “What is Susan saying to Joe that will prejudice him against me?” and Susan will be worrying about the same thing with Bill. Perhaps later in the process, I will speak to the participants individually, but I avoid this at the outset.
While my preferred approach to mediation is to work with the individuals together in the same room, I have successfully concluded mediation sessions with represented parties shuttling between them in the conventional settlement conference model. The approach is ultimately a question of the comfort level of the participants involved.
BENEFITS OF MEDIATION:
The greatest benefit of mediation is that the participants fashion their own resolution. Nobody knows them and the intricacies and nuances of their relationship and their needs the way they do. Certainly no judge or arbitrator can understand the complexities of their lives and relationship after a hearing or trial well enough to make a ruling that is appropriate for their specific circumstance. A mediated result conforms best to the disputants' real needs.
Mediation is, of course, much less expensive than litigation, by a factor of many thousands of dollars.
Mediation saves the participants from the wounds that are inflicted in litigation. There is no case I know of in which people have not offered evidence before a court, in order to win something, which did not, in some way, injure the other person and profoundly damage the relationship. Litigation avoidance is often held up as the foremost reason to mediate....and with good reason.
Mediation allows people in conflict to resolve their disagreements (often wrenching disagreement over intimate and crucial personal issues) in an environment of integrity and mutual respect. Individuals emerge from the process feeling stronger and better about themselves and the other person.
HOW I WORK:
Information I Provide in Our First Meeting
In the first meeting, I generally begin by asking each person if they have any questions of me that weren’t addressed in our initial telephone conversation. In divorce mediation, I then go on to give a basic description of what the process of divorce looks like in Washington and also what the law generally tends to say about divorce issues.
Lawyers who provide divorce mediation services usually avoid talking about the law - and for good reason. They want to steer clear of any confusion or mistaken belief that they are acting as either person’s lawyer, or as the lawyer for both. No matter how much people may assure a lawyer that this wouldn’t be a problem if they did, representing both people in a divorce is a conflict of interest that just can’t be stepped around. A lawyer who is a mediator doesn’t (and can’t) represent both parties. The lawyer mediator represents neither party.
I still think its important that people get an idea of the legal context in which they are working. I also believe that it is possible to give people a broad view of what the general principles are in Washington domestic relations law. However I always recommend that if people want a more detailed idea of how a court might decide in a particular set of circumstance, go buy the time of a lawyer for a consultation without your spouse. This is called “Unbundled Legal Services” and it is discussed elsewhere on this site. My discussion of law has a very different purpose.
The Two Pillars of a Durable Agreement
I believe that a solid and durable agreement needs to be based on two central pillars.
The name of the first I take from an old, influential mediation article - it is “The Shadow of the Law.” I think it’s important for people to understand the legal context in which they are operating. An agreement that is completely contrary to what Washington Law would provide for can’t form the basis of a long term arrangement that gets “buy in” from both people - unless it is entered with an understanding by each person of what they may be voluntarily giving up. I believe that “The Law” doesn’t provide “an answer,” but rather describes a range of outcomes. The people who make these laws - be they legislators in Olympia or judges - try very hard to establish a public policy that is based on a sense of fairness. One may not agree with their conclusions, but there is almost always a reason, grounded in this sense of fairness, for the laws that we end up with.
The other pillar is what I call “The Culture of the Marriage.” This is composed of many things - the understandings that the two people have had in the past, how they have acted toward one another and what sorts of things they took for granted over the course of the relationship, overt promises they made to one another, the concern they may have for how the other person comes out of the process and the future relationship they wish to have. I have found that a strong, durable agreement always has to be based on the integrity and good faith people bring to the process. That is also part of my job - to remind people of their higher selves and to make sure that both the way the process unfolds and its ultimate outcome is consistent with the “high end goals” people define, both for themselves and their partner.
I will usually give couples “homework” after the first session. This usually falls into two categories. First, I will ask both people to start putting together financial information, including personal budgets and gathering together statements from various accounts to begin to build an asset and liability spreadsheet. Another common task may arise if parenting is an issue between the spouses. Many people may have concerns or disagreements about parenting and in those instances, I will recommend that the parents meet together with an expert on parenting and divorce. These people are therapists who have devoted a large part of their professional energy to assisting parents in divorce. They know about children’s reactions to their parents divorce. They know what kinds of behavior is age appropriate and what kids really need from their parents. They also can give you valuable ideas about residential schedules. They aren’t evaluators. They are consultants - and I value their work enormously. There may be other kinds of homework we will discuss in the meeting.
Conferring With Your Own Lawyer
There is a growing number of lawyers in our community who provide “unbundled legal service” and who support the settlement process. “Unbundled legal services” are provided by lawyers on a task-by-task basis. You don’t have to retain a lawyer to represent you and plunk down a large fee deposit. You can buy a few hours of an experienced lawyer’s time to go over your needs and interests and get some straight feedback, information and advice without your spouse there. You can also have that lawyer review the final agreement before you sign it to assure that your interests and concerns have been addressed in a satisfactory manner. I recommend that everybody employing my mediation services confer with a lawyer for that reason. There are many lawyers who are supportive of the settlement process who can be found on the King County Collaborative Law website (www.kingcountycollab.org).
How Long Will It Take?
The first meeting, like most of the others, lasts about 1 ½ hours. I find that less time isn’t enough to get things done and more time tends to be too much for our brains and bodies to absorb. My experience has been that we usually arrive at an agreement within 3 to 5 meetings.