Apparently, during the first mediation training I ever took, I asked “On what level are we mediating?” I say “apparently” because while I do not remember asking the question, I am reminded of having asked that question by John Fiske, one of my trainers, at almost every conference and training at which we participate together. While John brings this up to highlight what an insightful question it was, at the time I suspect that I asked it with complete naïveté and out of a sense of being overwhelmed by the process. At the level I was asking it, I was simply asking for some guidance about how to address all of the things coming at me, legal issues, emotions, strategic issues, practical issues etc.
Twenty years later, I still ask the question, but in a slightly different way. I am still trying to figure out at what level I should be mediating, but I have come to conclude that a better question might be “how do I measure success in mediation?” This question itself has many levels, not to mention many answers. Some of the levels include: Success for whom? Success for the parties may not be the same as success for the mediator. Success for the mediator may not be the same as success for the court system. And what about success for the mediation profession?
What does success mean for the mediator?
Let’s start with the mediator. In my ideal world, I would measure the success of the mediation in the following way. On one level a successful mediation would include an agreement reached by parties who are fully informed about the law and finances. However, in my ideal successful mediation I would need more. I would want to know that I had done everything I could to help the parties achieve closure on the emotional undercurrents of the divorce. For me therefore, a successful mediation involves not just the agreement they take to court, but resolution, or at least an attempt at resolution, of all that complicated muck under the surface. This includes apology, acknowledgement, and recognition for starters. I would liken it to working on the portion of the iceberg below the water line. Or to use a gardening metaphor, to insure that a vegetable plant is healthy beyond the year you plant it, you want to work on the soil, enrich it, make sure the PH is correct, etc. You might just buy a plant from the garden store, plant it and it will bear fruit that first year but probably will not survive the following year without your making sure the soil is healthy. An agreement that is reached on a superficial level may get the parties through the court process and approved by the court, but will it serve them well in the future if they still have unresolved issues?
Having recently become a fan (if not an addict) of the television show “Friday Night Lights”, I see a parallel with high school sports and mediation (and I distinguish high school from college or professional sports for some important and obvious reasons). On one level, success in high school sports equals winning games. On the surface, that is the goal sought by the kids, coach, parents and the school. But having been involved as a parent of children participating in high school sports, I see a much more fundamental, deep and powerful goal. Much more than winning, high school sports is about developing character, community, confidence, integrity and learning to balance the needs of the team with the player’s personal ambitions and goals.. If I had my choice I would choose a team for my children that lost every game but where they developed strong character and where they had a coach that molded their character in a positive manner. Similarly, if I had my choice, I would choose a mediation that failed to reach an agreement but that helped the parties reach emotional closure and improved their communication with one another (particularly if they have children together). Obviously my preference is for a mediation where the parties do both: reach an agreement and reach closure.
What are the impediments to this holy grail of mediations?
Cost: For many clients, particularly if they have limited means, cost is a major impediment to an agreement which is multi-layered. Often, such clients may want (or need) to reach an agreement in the quickest and cheapest way possible. For these clients a mediation session might mean that they cannot pay their credit card bill this month or might result in their having to borrow money to mediate. They are looking very closely at the clock and thus any attempt on my part to dig down a bit is met with resistance (and another look at the clock!)
Time: Related to cost (but not always) is the time involved. Clients may not want to take the time involved in addressing the emotional/communication issues (the below the surface issues). They often want to finish their agreement as soon as possible and get divorced. Another aspect of time has to do with when the mediation is occurring. If it is close to the time when the decision to divorce was made or close to the occurrence of an event that led to the divorce (for instance- the affair) it may be premature to discuss the emotional aspect of the divorce. On the other hand, for clients who have been separated for some time, they may have already moved on and not feel the need to go back into the emotional morass.
The clients: The clients may be in different places on this issue. It is not unusual to see the gender stereotypes played out with women wanting to address the emotional issues and men avoiding it like the plague and simply wanting to “fix the problem.” But gender stereotypes aside, sometimes, one party just wants out as quickly as possible and is not interested in processing. It could be the party who is motivating the divorce or it could be the party who did not see the divorce coming and is so shattered that he or she is not capable of processing anything.
The mediator: If your profession of origin is law, the idea of helping people work out their emotional issues may be frightening. This is not what they teach us in law school and you may feel ill-equipped to go there. You may in fact be ill-equipped to go there. So, for the mediator and the lawyer/mediator in particular, the safe route is to stick to the facts and help the parties work out the finances and reach an agreement on the substantive issues.
What does success mean for the clients?
For clients engaged in a divorce mediation, ideally, a successful mediation would probably look similar to mine: resolving the issues and having an agreement that can be submitted to court and reaching closure on the underlying emotional issues. For clients however, it is a bit more complicated. First, there are two of them. Their definitions of success (even as to the superficial issues of what is a fair agreement) are often different. They may be in very different places in terms of readiness to move on. A party who is the initiator and who perhaps has been thinking about the divorce for a long time, may be in a very different place than the party who gets hit with the news and did not see it coming. The initiator may be ready to address the underlying issues while the person who is being left may not. Then it becomes an issue of timing for the mediator. Should the mediator encourage the parties to delay the process so that the person being left catches up? This may not be realistic or practical.
Economics also play a significant factor. For many clients, divorce presents a catastrophic financial event. For most low to middle income families, it may have been difficult enough to make it as a united family. Now, having two households is financially devastating. Thus, they are in a financial hole and their economic situation dictates that the mediation be as quick and inexpensive as possible. Many clients have to save up money for the mediation session. Paying the mediation session may mean not paying another bill that month. So, while spending time on the “underlying issues” may be a laudable goal and they may even be interested in doing so, financially, they simply cannot afford it. Their financial interest is to make the mediation as efficient and inexpensive as possible.
What does success mean for the court system?
In answering this question, we encounter another level of inquiry for the mediator and encounter one of the thorniest and most complicated issues faced by mediators.
So far we have explored two levels- first the top layer of our iceberg- the actual agreement. We have explored the layer beneath- the emotional level which includes connection, communication and closure. What about the fairness of the agreement? There are many ways to ask this question, each with a slightly different nuance. Is it the mediator’s job to make sure the agreement is fair? Is it the mediator’s obligation to insure that the court will find the agreement fair and reasonable? Is it the mediator’s obligation/goal to insure that the agreement is fair to the parties? And, is that different from insuring that the court will find that the agreement is fair and reasonable?
So, to bring this back to the original question, is the mediation successful if the parties reach an agreement that you as mediator think is not fair? We all know the various tools we could use to address this issue- insist that clients get advice from their individual lawyers, caucus, tell the clients that there is a chance that a judge may not approve the agreement, ask clients to pretend you are the judge and explain their rationale, or include language in the agreement that explains how they arrived at the agreement. But at the end of the day, what do you do if the clients insist on an agreement that you do not believe is fair? Do you tell your clients that you will not prepare an agreement with your name on it? Do you refuse to proceed? Or do you allow them to proceed?
What is success for the court system when it comes to mediated agreements? Is it to have an agreement which fits within certain parameters and is therefore “fair” as that is defined by the law, by case law and by what the majority of people do? Or is it an agreement reached by two people who are fully informed about the law, the facts, and their legal rights? Obviously there are cases that meet both criteria- probably the majority of cases. But what about the outliers? What about the case where the parties are fully informed about the law, the facts, and their legal rights but which does not fall within the parameters which most would consider normal. Stated another way, is an agreement in which the parties are fully informed about the law, the facts and their legal rights, and which the parties believe is fair but which the court may not approve as “fair,” a successful mediation?
Several of my cases come to mind when I think of this question but one case in particular is worth retelling and exploring. In this case which occurred more than 15 years go, clients came to me for mediation after protracted litigation. They were disgusted by the litigation process and were almost out of money. The only issue remaining was custody. In our second session, they came up with a solution- they simply did not use the word “custody”. The parties did not indicate in their agreement who had “physical custody.” Instead they simply created a specific parenting schedule. When they went to court, the judge rejected their agreement because it did not specifically indicate who had “custody”. Was this a successful mediation? From my standpoint it was one of the most successful mediations I ever participated in. The parties arrived at a creative solution that they were both happy with after months (if not years) of wrangling. The courts have a different perspective. The judge is concerned with the legal complications that may arise from this agreement. Will they be back in court because of the complications from their creative solution? Is it legally appropriate to not designate who has custody? Do the parties understand the legal implications of their agreement? After having grappled with this issue for years, my response to the questions is as follows: If the parties are fully informed and are entering into the agreement with their eyes open, they should be able to enter into this agreement. Is it appropriate for the court to tell them that notwithstanding their agreement, the court does not agree? One of the disconnects may be that the court in its five minute divorce hearing is not privy to all the discussions the parties had in mediation. Would this help?
The postscript to the case is that back in those days, cases were not assigned to one judge. So, They eventually brought their agreement back to court in front of another judge and it was approved in the manner they had agreed to during mediation.
What does success mean for the mediation profession?
From the standpoint of the mediation profession, the question of what does a mediator do with an agreement that he or she believes is unfair is a fundamental question that goes to the heart of what we do in this profession. Focusing here in divorce mediation and distinguishing other forms of civil mediation such as personal injury which look very different, what does it say about our profession if we cannot agree on the following question: “What should a mediator do if he believes the agreement being reached by the parties is unfair?” This would never be a question to a divorce litigator. If you, as litigator, felt the agreement was not fair you would strongly discourage your client from signing it. If your client insisted, you would probably write a lengthy CYA letter explaining what you have advised your client and that she is not following your advice and have your client sign it. But in mediation, this question persists. In a recent discussion group on a Linked-In ADR group, a similar question was posed. It generated a long and lively discussion. While most of those submitting comments fell into the “I would let the clients continue with an agreement that I (the mediator felt was unfair) after trying various interventions,” a significant number also indicated that they would not agree to write up the agreement and submit it to court under their name.
So, what is success for the profession of mediation? I believe it is a clear understanding of the role of the mediator or at least a delineation of different mediation approaches so that clients know what they are buying into. If clients go to one mediator who says I will not put my name on this agreement if it is not “fair” and another mediator says, “I will draft this agreement for you as long as I am sure you understand,” this causes confusion. In business-speak, it causes confusion about what is the “product.” There is nothing wrong with having choices but perhaps each approach should be designated by a different name.
So in the big scheme of things, what is a successful mediation? It is a mediation where the parties have reached an agreement on the finances and have either reached closure or at least some form of acknowledgment of the emotional issues so that they are able to have a future relationship not hampered by pre-divorce demons. For the overburdened court system this reduces caseloads in the present and hopefully in the future. For the children of divorce, it means their parents will not be distracted by unresolved divorce issues and the children can receive the best care and attention the parents are capable of providing. For the mediation profession, a successful mediation is all of the above and a clear understanding by consumers that the product they received when they signed up for mediation is what they expected.
So what is I the answer to the question “How do you define success in mediation?” I would have to answer that with the same question I raised when it all started for me. I would first have to answer the question, ”On what level we are mediating?”
Counsel can no longer assume that anything that happens, especially written notes, is protected by the confidentiality provision. Even if the parties sign the confidentiality agreement at the beginning of...By Elizabeth Moreno