Divorce Mediation: More Mainstream But Less Pure

Institute for the Study of Conflict Transformation by Dan Simon

Changes Since 1998

I started mediating full-time in 1998. Back then people I met were intrigued by the idea of mediation for divorce. Though it had been happening in family cases for years, it hadn’t quite reached mainstream consciousness. Nowadays, when I tell people I do divorce mediation, they usually seem to know what I’m talking about. You’d think that would be good news. But most often, they’ve either had or heard about very negative experiences with divorce mediation. They seem to think of it as being just about as horrific as divorce litigation is. Lawyers I meet say things like “I could never do family law” as if divorce mediation is about the law, and as if the process is simply part of the notoriously damaging, expensive, frustrating legal process of divorce. Divorced people remember mediations in which the mediator seemed to be pressuring them or in which their spouse became even less reasonable. Unfortunately, as mediation has become more widespread, it’s also become more legalistic, so these negative impressions of it are well-founded.

Hybrid Approaches

Although mediation has the potential and in many cases succeeds at being an entirely different and healthier experience than legalistic divorce, mediation has more often been watered down to the point where it’s simply another part of litigation. The strength of lawyers in the marketplace has caused the legal paradigm to remain central to mediation as it is most often done. That paradigm manifests itself in so-called hybrid processes, where the purported mediator issues a legal opinion or even a legally enforceable ruling at some point in the process. That these processes cannot possibly provide the level of self-determination and therefore increased empowerment of and recognition between parties is lost on those who are operating from the legal paradigm.

The processes that twist the concept of family mediation to fit the legal paradigm include, most popularly, Early Neutral Evaluation and Parenting Consulting or Coordinating. In Early Neutral Evaluation, the “mediators” spend some time with the parties, hearing their perspectives, and then they share their prediction of what a judge would do in the case. Setting aside the obvious lack of procedural safeguards and the preposterousness of the idea that the outcomes of court proceedings are predictable, the real harm comes from the missed opportunity for the parties to receive support for working with each other. The impending evaluation motivates parties to plead their case, dismiss each other’s perspective, and to continue to feel threatened and powerless. The legal professionals who administer these processes are apparently not paying attention to the damage it does to the parties’ interaction. While it’s understandable that legal professionals imagine that it’s helpful for parties to have the legal opinion of a purportedly neutral Evaluator, it’s generally helpful in only the shortest-term sense, that it may cow parties into a compromise.

Parenting Consulting or Coordinating is an even more extreme corruption of the idea of mediation. Consultants or coordinators have authority to make binding rulings about parenting issues. While there is talk of these professionals first attempting to mediate disputes, “mediation” probably is not the right word to use for a process in which the prospect of a binding decision is hanging over the parties’ heads. As with Early Neutral Evaluation, the focus on the parties retaking control, taking responsibility for resolving their differences, and treating each other as co-parents, is lost.

These trends are heartbreaking for those of us who know of mediation’s power to transform conflict. We’ve seen people who felt like victims of each other take responsibility for their part of the situation and decide wholeheartedly to work together constructively. We’ve seen adversaries forgive each other; and we’ve seen ex-spouses rejoin each other in a mutual commitment to parent their children well. That transformative mediation can do those things, but that the public often thinks of Early Neutral Evaluation or Parenting Coordinating as types of mediation, is very disappointing.

So Many Mediators, Mostly Lawyers

Even mediation in which the neutral provides no evaluation, when it’s conducted by a lawyer, judge, or mental health provider who has embraced a legalistic perspective, is most often conducted in a way that disempowers the parties. These mediators are focused not on helping the parties get to a better place with each other, but on creating a legally binding document. Legally binding documents can be wonderful things, but mediation’s potential goes far beyond them. A process that focuses on that outcome but that doesn’t help the parties regain a sense of control and of deeper mutual understanding does not live up to the promise of mediation. Further, to the extent that parties prefer to reach a legal agreement, that result is more likely with skillful transformative mediation, than with these processes where the parties naturally resist the mediator and remain adversarial toward each other.

The legal paradigm focuses on the concept of individual rights; and it assumes that conflict is resolved by referring to the laws and then debating about how they apply to a given situation. That perspective is very different and usually antagonistic to the idea that conflict is relational. A relational understanding of conflict focuses on people’s innate desire not to be victimized but also not to oppress. And it allows for the reality that the conflict means something to the parties that has little to do with the law. People who have immersed themselves in the legal perspective find it very hard to embrace the relational one. And yet, working as mediators is very appealing to lawyers and retired judges. It’s refreshing not to be a direct part of the victimizing-victimized cycle.

But ceasing to be an advocate does not take the legal perspective out of the lawyer. For many lawyers, being a mediator feels very similar to being a judge – you’re above the fray. That you’re not doing anything to help transform the situation from a fray to a conversation doesn’t bother you as a lawyer or retired judge – you’ve never know the system to do that, so you don’t imagine that it’s possible. That so many mediators are also lawyers, or have been heavily influenced by lawyers, is part of the story of why the healing potential of mediation has been undermined.

I believe the hope for mediation lies in the potential of those of us who understand conflict at a relational level to speak more loudly and more clearly. We need to let the world know that mediation can be very different from the legalistic processes that are so widespread.

                       

Dan Simon

Dan is a leader in the field of transformative mediation. He is the author of the chapter on divorce mediation in the Institute for the Study of Conflict Transformation's ("ISCT") TRANSFORMATIVE MEDIATION SOURCEBOOK. He is a Past Chair of the Minnesota State Bar Association's Alternative Dispute Resolution Section. He served… MORE >