Although mediation is an ancient and successful practice, it is not always well understood.
The differences between mediation and more adversarial processes (like litigation or arbitration) are profound and philosophical.
Mediation is all about client empowerment whereas parties in litigation are limited to seeking the rights and remedies established by law and determined by 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; litigation creates a winner and accepts, as a necessary cost of the process, that there will be 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, with the assistance of their lawyers, 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 identify what they need to make those decisions themselves.
Mediation is a 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, with the guidance of their lawyers–not the court. The parties are free to decide what they think is fair; the mediator’s job is to make sure that the they have all the information they need to make that decision.
Mediation practice is as diverse as those providing and those using it.
There are, for example, situations where a mediator needs to assess the merits of the case and help both parties understand the likely outcome. The mediator’s skill lies in the way he or she does it, allowing for a satisfactory settlement.
This ‘evaluative’ approach to mediation can be contrasted with the more ‘facilitative’ mediation process, where the mediator works hard to help the parties identify their respective interests and goals and, without expressing a view on the merits of the case, helps them reach a settlement that is ‘good enough’ for them both. The skill in this approach to mediation lies in the mediator’s ability to help the parties create their own options for settlement and choose the best ones for themselves.
There is no “correct” mediation style or process; the diversity of mediation practice is what makes it such an effective process. Likewise, there are cases where lawyers need to be present for the mediation process, and others where they do not. Each situation is different.
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, 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. Nor is everyone always 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.
For these reasons, it is often preferable that at least some part, if not all, of the mediation takes place with the clients and their lawyers together. Most family lawyers are well-trained in mediation and collaborative negotiation; they are almost always a great asset to the process. And the financial and emotional complexities of mediation can be challenging; lawyers can provide advice and insight in a way that saves time and helps their clients make better decisions. It may seem more expensive to have lawyers present but, in our experience, the benefit almost always exceeds the cost.
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; mediators need to work closely with the clients and their lawyers to structure the process. 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.
