From Diane Cohen’s Blog
When parties come to mediation, they may or may not have a clear idea of what they should expect, or in fact, what mediation is. It is therefore common practice for mediators to tell parties what the process of mediation is, so that everyone is clear. Although it is appropriate for mediators to make sure that both the mediator and the parties agree on what the process will entail, should the mediator be the one deciding — or mandating — what the process is? Ironically, a basic principle of mediation is self determination. Yet, is it self-determination to decide for the parties what the process should be?
Here are some examples in the divorce mediation context:
In a preliminary session, the mediator may spend time telling the parties what divorce mediation is, how the process works, how decisions are made, what is expected of the parties and what is expected of the mediator. Some mediators even provide “rules” for the parties and the mediator.
In my mind, this is a flawed process. Instead, I see it going this way: Parties come in for divorce mediation. The mediator asks what the parties would like the mediator to do. The parties are either clear or unclear; in agreement or not in agreement. If they are unclear, the mediator can explain how they are unclear and — if they want — can help them become clear about what they want. If the parties are clear and not in agreement, the mediator can offer to mediate the issue of what they want the process to be. If the parties are clear and in agreement, but it doesn’t sound like mediation as the mediator knows it, the mediator needs to find a way to respond that respects the parties’ right to have the service they want. If the parties know what they want but it is logically impossible or has severe pitfalls, the mediator should engage the parties in a discussion about those concerns and help the parties re-think how they want the process to work, which other professionals they may also want and how they should be involved.
What if parties come in and say: we want you to help us try to work out some disagreements we have about dividing our assets so that we can get divorced. But if we don’t agree after one or two sessions, we would like you to decide. Many mediators think med-arb in the family context is unethical. A mediator is surely free to refuse to provide the process if he feels unqualified or unequal to the task, or personally feels it is not a good idea, but is it unethical for a qualified, capable person to offer it? One argument against med-arb is that parties will not feel free to discuss issues openly if they know the mediator may ultimately be the arbitrator. While this could be a pitfall and could affect the success of the mediation process, does this mean that the mediator should consider it unethical? Or does it mean, instead, that the mediator should disclose this pitfall to the parties and then let them decide? Parties who come to divorce mediation often want a process that will save then money. Having a med-arb process may be one way to do that and the parties may be willing to accept its pitfalls. Certainly, the mediator will have to discuss with the parties exactly how such a process might work, and upon analysis, it might turn out to be unworkable, but is it clear that it can never be ethical?
What if parties come in and say: we want to get divorced, don’t want to pay attorney’s fees, want someone to tell us how to figure all this out and just get it done. Should the mediator refuse and say that mediators don’t make decisions? Or should the mediator say that the service they are requesting is not really mediation, and that he does or does not know whether that service is available and what it might be called, but that they might be able to get it from someone (perhaps this mediator, perhaps someone else)? Yes, of course, there are issues about how the neutral will make the decisions; but that is not the same as saying the mediator should insist that the parties use a different process. The mediator should at the very least be able to help the parties think through what they want and fine tune it if it is unclear. It may not be clear what the credentials of the person who will provide this service should be or what the criteria for making the decisions should be, but that is not the same as limiting the scope of the processes the parties can obtain to seemingly well-defined set categories that do not allow for the tweaking of the process by the parties.
Many couples come to a divorce mediator looking for a combination of financial planning, a dose of legal information and/or advice, and someone to help them with any disagreements that arise. They may very well want someone to give them advice about the law and about how to structure their financial agreement. They may not want a neutral upfront who is not going to offer opinions or give legal advice. They might want those things. They believe they can get all of it from one person: the mediator. But they believe that because it is not their job to figure out how the mediator can wear the hat of a financial expert with opinions, the hat of two separate attorneys with allegiance to different clients, and the role of a neutral who expresses no opinion and gives no advice. Some of these roles are clearly contradictory and it is not possible for one person to perform all of them. This, the mediator can explain to the parties, and can help them think through which professional they want to contact first, if they do need financial and legal advice as well as mediation.
When the issues are financial; when the parties are in agreement about basic facts (such as, perhaps, wanting to divide their assets down the middle), then what they may decide they want at the outset is a financial planner. They may also need a little legal advice to make sure they are aware of what the law considers marital assets and other related issues; but they may not need a mediator…yet. Or, they may need the mediator at first, for the limited purpose of helping them discuss and think through which other professional(s) they should first contact and what the instructions to those professionals should be.
Ultimately, after the parties have a fuller understanding of their financial situation, and have the legal information they need, if they disagree about how much money each is entitled to, or what is fair, or how to spend time with the children, or what is best for the children, then a mediator might be what they want. At that point, the parties would be clear that they have all the expert advice they want, and now have a disagreement based on a difference of opinion and perspective. At that point they might want the service that is generally considered mediation.
If we respond to the desires of parties, we might find that new and limited roles for attorneys, financial planners and mediators can be carved out, which are tailored to the needs of the parties and which are therefore extremely cost effective, and which provide precisely the service the parties need. We may even find, ultimately, that there is more work for mediators, as mediators begin to play a smaller role but are incorporated into the mainstream of cases with lawyers.
The bottom line is: the services of a neutral should reflect what the parties want. That is what self-determination is. And if we agree that self-determination is the goal of mediation, surely it should be the goal in the process of deciding what type of service the parties want. The parties may end up deciding they want a one hour consultation with their own attorneys, a brief consultation with a neutral financial planner, a discussion between themselves, and the mediator playing the role of helping them think through what they want and helping them work through disagreements. As mediators, we should be able to engage parties in a more nuanced conversation about what they want mediation to be, and help them work toward and develop the particular process they want.
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