Celebrating Family Mediation By Hilary Linton B.J., LL.B., LL.M. (ADR)* February 4, 2004 Although mediation is an ancient and successful practice, it is not always well-understood among those in the divorce business. Accordingly, it is not widely promoted by the legal industry as an alternative process for sorting out the often messy and painful details of a divorce or separation. The differences between mediation and lawyer-led processes are profound and philosophical. Mediation is all about client empowerment; parties in lawyer-led processes take their cues from lawyers and judges. The over-riding emphasis in mediation is de-escalation of conflict at every opportunity; the legal process, on the other hand, consciously escalates conflict as a means to an end. The ideal outcome of a mediation is two satisfied customers; legal processes, by definition, seek to create a winner and accept that there will be collateral damage: a loser. Mediation is best described as a safe place to have difficult conversations. The mediator's job is to provide a fair, balanced and informed process in which a separating couple can resolve their differences and move on with their lives. Mediators are not judges; they do not take positions or tell people what to do. Rather, they help people make those decisions themselves. Mediation is a process, just like going to court or negotiating with lawyers is a process. It is generally voluntary, theoretically non-adversarial, and almost always off-the-record and confidential. The tone, pace and content of the negotiation is driven by the separating couple, not their lawyers or the court. The parties are free to decide what they think is fair; the mediator's job is to make sure that the process used to get them to settlement is itself balanced and fair. Family mediators come from all walks of life. Many have backgrounds in social sciences or theology. Others are lawyers or former lawyers. Some are just plain mediators. Family mediation training is also diverse. Courses and certificate programmes in mediation abound at universities, community colleges and elsewhere. Research shows that family mediation, if done well, more than meets its promise. Studies from Canada and the US consistently show that men and women alike who mediate are more satisfied with both process and outcome than the men and women who litigate their marital disputes. The mediation process is universally considered superior to court in helping parents meet the needs of their children. There are other benefits too. If both parties are ready and willing to work together to reach an agreement, and if their lawyers are comfortable relinquishing control of the process, the negotiation is usually less expensive and more timely than using lawyers to conduct the negotiation or going to court. Although many mediators charge an hourly rate similar to a lawyer, both parties share the cost of one mediator. There are, of course, complications. Rarely are both parties at the same place emotionally; for this reason mediation often takes longer than either party expected. Nor is it an easy process. Mediation requires both parties to focus on the issues and work hard, constructively and without blame, on finding workable solutions. “Be easy on the person and hard on the problem” is a fundamental maxim of mediation; it is often easier said than done in the wake of a marital breakdown. Not everyone is ready to sit in the same room with their former spouse and reasonably work though a division of assets, debts and time with their children. Mediators must have good judgement, good instincts and be creative around structuring the process. They must be sensitive to and respectful of the needs of each client. Nor is everyone willing to be (appropriately) honest and open with the other person; anger and blame can sabotage the best of intentions. Financial mediation requires full financial disclosure to the satisfaction of both parties and, usually, their lawyers. Parties entering mediation expecting to work out a quickie deal with minimal disclosure to the other party are often disenchanted with the financial rigours of the process. And some people come to mediation expecting to be able to continue the manipulation, guilt, violence or abuse that has enabled them to maintain control or power over the other. One or both parties may even be unaware of the dynamics of power in their relationship, but they will be apparent to a good mediator. Finding a way to conduct the negotiation on a “level playing field” can be difficult. Sometimes there is no way to do it and the mediation must be terminated. Despite its challenges, mediation remains a simple, useful and flexible tool for almost all separating couples. It offers them an opportunity to salvage their dignity, find solutions they both can accept, and move forward in a spirit of acceptance, if not cooperation. * Hilary Linton is a family mediator practicing at Riverdale Mediation in Toronto.