Guest Post: Advanced Mediation and Negotiation: I didn’t know what I didn’t know

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When my Advanced Mediation and Negotiation course started at Riverdale Mediation Hilary Linton took to the podium and asked all the attendees what their expectations were from the course.   We took turns going around the room and we all had similar answers that were based around an increased knowledge in the practical work in mediation.  Sometimes the question was hard to answer because we didn’t know what we didn’t know.  I was last to respond and my answer was, “I want to learn three new things”.   Based on the fact that I didn’t know what I didn’t know; I was keen to keep an open mind to learn something new.  I just didn’t know what that was yet.

 

 

So, what three things did I learn in my Advanced Mediation and Negotiation course that would strengthen my practice?

 

First: I learnt that there are many talented mediators with different levels of knowledge about an array of topics.  Some came from a child-focused background and truly understood the psychology of a child’s development at various growth stages.  Others focused their practice on the properties issues surrounding divorce and co-mediated the family aspects with other mediators who focused on the relationships between the parents and their children.  Each respective mediator brought their wisdom to their mediations.  It clarified, for me, that in the interest of being the ‘neutral’ in the room it didn’t mean you had to compromise other skills that you brought to the table.  Asking the right questions at the right time or being known for your specialty will bring you clients that are tailored to your service offering.

Two:  Be intuitive and open to explore.  Sometimes the reason for impasse is not surface level.  Clearly, some people will engage over assets that can hold up the process for multiple sessions.  Using tools available to mediators such as caucus, bringing in other professionals with a particular specialty or simply asking the right question at the right time can bring forth the self-realization the client needs to move forward.  It really isn’t about that precious piece of furniture after all.

Three:  Mediators can and should divide the substantive issues from the procedural issues.  There might be times that shuttle mediation is appropriate. There might be times when co-mediation is an alternative.  Each client’s separation and divorce are different.  Understanding how the procedural issues can affect the outcome can provide clarity and a smoother resolution process.

I left the course feeling that I had made some good professional friends who made me feel a lot less alone in my path to understanding and employing excellent mediation tools to ensure I do the best job for my clients.  If I were to add a fourth lesson it would be that we are always learning from not only each other but from our client’s and our experiences.  It was nice to share those with each other in the classroom whether they were students, such as myself, or the knowledgeable facilitators who had so much to share.

 

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Intensive Mothering: The Cultural Contradictions of Modern Motherhood

It all began after the mothering. I wondered what sort of mother I was when I was in it. Was I an “intensive mother” or an empowered one?

 

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In Hays’ original work, she spoke of “intensive mothering” as primarily being conducted by mothers, centered on children’s needs with methods informed by experts, which are labour-intensive and costly simply because children are entitled to this maternal investment. Was I one of those? Could I be a bit of both, sometimes one then the other? Was I one type of mother with one of my children and another with the other? Could I have characteristics of each and not yet be either? I also noted from my research on paternal involvement and maternal employment that there were fathers who were intensively involved with their children. Who were these men and was it the same type of intensive parenting as the mothers displayed?

Simultaneously with these thoughts, as a researcher in the area of combining motherhood with employment, I reflected on how the Early Childhood literature was incompatible with the motherhood and Feminist literatures. In other words, what was good for the child didn’t seem to work so well for the mother and the reverse. How to reconcile this dichotomy? I certainly believed in the importance of attachment in a child’s life but how much was too much and what impact would it have on the mothers, as well as their children, through the lifespan?

I decided that I needed to officially speculate on these issues pertaining to intensive mothering and thus this edited collection was born.

The book is divided into three sections: Understanding and Assessing Intensive Mothering; Intensive Mothering Today; and Intensive Mothering: Staying, Leaving or Changing. The first section draws on academic research and theory in the area of intensive mothering to help further understand the phenomenon. The second section explores the practical implications of intensive mothering in various scenarios and the last section reflects upon the future implications of intensive mothering, and the possible adjustments or alternatives to it. This collection of essays has been written by academics from various disciplines, from different parts of the world, at different points in their careers. It will clarify what intensive mothering is all about, as well as clarify why it still persists in modern times.

I believe that this collection will be a helpful addition to the field of parenting and especially so for family mediators, who are working closely with parents, who are trying to do their best for their children under challenging circumstances. This collection will provide an additional resource to the field and further clarify what intensive parenting looks like, as well as suggest potential alternatives to it.

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Should family mediation be mandatory?

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In Ontario we are lucky. The province funds extensive free and subsidized mediation services for separating couples, whether they are in court or not.

Up to 8 hours of mediation is available, at subsidized rates, for all issues— parenting, support, property division. The statistics show high rates of agreement and client satisfaction.

But some feel that voluntary mediation is not enough and that it should be made mandatory. In particular, a recent report written by a highly respected group of judges and other stakeholders has recently recommended mandatory “Consensual Dispute Resolution”. We have spoken out against this idea before.

One of the challenges with mandatory mediation is that it removes voluntary participation. One of the fundamental elements of successful dispute resolution. Also, it puts victims of violence in a no-win situation by forcing them either to publicly disclose the violence in a process that may not be sufficiently resourced to keep them safe– which could put victims and children at risk– or to participate in a potentially dangerous process without disclosing it, for fear of the consequences of disclosure.

There is a dearth of research indicating that mandatory mediation is better than the alternative that we believe to be safer, less expensive and more effective: mandatory intake for mediation with voluntary participation thereafter. (subject to the discretion of the mediator on issues of power, control and safety.)

A recent study of a three year mandatory (free) family mediation project for parenting disputes in North Dakota provides some insight into what is needed for such a program to achieve success:

    1. almost 40% of cases were rejected for mediation at the start due to protection orders.
    2. the mediators were given extensive training in understanding and screening for family violence dynamics and safety planning.
    3. 84% of participants were represented by counsel at mediation.
    4. mediations began with confidential intake/screening meetings where mediators identified and assessed power imbalances, violence and safety risks, and engaged parties in safety planning if such risks were identified.
    5. settlement was not considered a priority of the project.
    6. all settlements reached in mediation were subject to rescission by either party within 5 days.

It is fair to assume that very significant resources were devoted to this project.

The settlement rate reported for parenting disputes is 50% full agreement and 26% partial agreement, with 10% of these rescinding. These are lower settlement rates than those achieved in our voluntary mediation program in Ontario. And although the satisfaction rates are very high (87% reported overall satisfaction– similar to the satisfaction results we see in Ontario) only 65% of participants are completing the satisfaction surveys, calling into question the validity of the high satisfaction ratings.

The other troubling aspect of the program is the extremely low number of cases–as reported by the mediators– with a power imbalance that affected the outcome. Only 7% of all cases were considered to have such an imbalance of negotiation power— which seems unrealistically low. Further, the mediators are asked to describe the indicia of domestic violence and the steps they took to address the issue. The answers to this question are troubling, as it appears that many mediations are proceeding without extensive safety planning, despite the report’s claim that the mediators possess sophisticated skills in this area. The information provided by the mediators does not necessarily support such a conclusion.

The good news for the North Dakota courts is that the time between filing and disposition of cases has been reduced by at least 25%, and the percentage of cases that come back to court has dropped by about 60%. These are encouraging stats for today’s overburdened and underfunded family courts. Further, participants by and large genuinely valued the process and gained more from it than they expected. But it must be remembered that the vast majority of participants in this study had legal counsel. In most family courts, the unrepresented greatly outnumber the represented.

There is a lot of work to be done to design an effective and safe family mediation program. It is suggested that the best ones will include mandatory judicial referral to confidential mediation intakes, with extensive screening and safety planning features, followed by voluntary mediation that is carefully designed, and delivered by highly trained specialist mediators, and well funded access to legal support. To do this well requires significant and dedicated resources. The North Dakota project is well on its way towards meeting these objectives. But in Ontario, we too are well on our way to what we propose is a better process. Judges in Ontario have the authority under the Family Law Rules to order parties to a free mediation intake. We hope that more judges start using this Rule, and that more lawyers and parties start asking them to order mediation intake as well.

Posted in Custody of children, Domestic Violence, Family Law, Lawyers, Mediation, Negotiation, Separation & Divorce | Tagged , , , , , | Leave a comment

Leading UK research on family dispute resolution

IMG_2813Helping clients identify the most appropriate dispute resolution process for their family just got a lot easier thanks to a new study in the UK. It is the report of a three year study on the usage, experience and outcomes of family mediation, lawyer negotiation and collaborative law: Mapping Paths to Family Justice.

The researchers studied almost 3000 people across the UK, followed by interviews with almost 100 of them. As well, and most remarkably, the researchers recorded mediation, lawyer-negotaition and collaborative law processes to gain deep insight into how the processes work and how clients respond to them.

The results are surprising in some ways and predictable in others. Some findings:

– for those experiencing separation, the primary source of information about out-of-court dispute resolution options is family lawyers. In the UK, funding cuts have eliminated all legal aid in family law except for mediation. As a result, public awareness of all DR options has declined as fewer people are consulting lawyers before commencing proceedings. In Ontario, we are lucky: Legal Aid Ontario has actually increased funding for family law, particularly for the negotiation, including mediation, and drafting agreements.

– emotional readiness to participate in any form of negotiation was important, with some mediators in particular failing to fully identify this factor. Combined with this was screening for violence and other power imbalances that often failed to identify, assess or manage risk in a way that made vulnerable parties feel safe. “Our study found worrying evidence of cases where screening appeared not to have occurred, or not to have been responded to appropriately.” Similar challenges exist in Ontario where only accredited mediators are required to screen for power imbalances, and where many lawyer-mediators in particular still do not follow best practices in screening.

– client satisfaction rates with mediation (41% of the omnibus survey and 75% of those interviewed) were considerably lower than our experience in Ontario’s court-connected mediation (almost 90%) programs. “Those who were not satisfied were most often those who felt pressured into mediation.”

– financial disputes are easier to settle out of court, regardless of the process chosen, than parenting issues.

– mediation achieved higher resolution rates than lawyer-negogtiation, but this may be because the clients who choose mediation have lower levels of conflict. Settlement and satisfaction rates with collaborative law were high particularly on financial matters, but the study sample was low given the limited number of people who can afford that process.

– it is important to try to identify those cases that are not likely to settle at the outset, to avoid wasting time and expense for parties. These include cases involving intractable conflict, rigid expectations about outcomes, coercion and control, and opposing ideological positions regarding best interests of children. Importantly, another reason for non-settlement in mediation was the non-binding nature of mediated outcomes , called Memoranda of Understanding (MOU). This is a problem in our jurisdiction as well, where many mediators send the parties home with well drafted MOUs that, without legal advice and proper format or a court order, are not binding. We however are fortunate that LAO has stepped up with more funding to support mediated outcomes, and our mediators are learning to draft in terms that can be incorporated into court orders more readily.

– most interesting are the findings about the different norms that men and women were found to bring to the table. The predominant norms for mothers were child welfare and status quo/primary care for children. For fathers, they were formal equality and rights. In financial matters, the predominant norm held by women was to have their needs met, particularly those of the children. For men, it was formal equality and the measurement of contributions.

These findings are enormously valuable for us to consider. Fortunately, the researchers have just received funding to write a book with more extended findings, and it will be one to read when it is published in early 2016.

Posted in AFCC, Arbitration, Children, Collaborative Practice, Culture, Custody of children, Domestic Violence, Family Law, Lawyers, Mediation, Negotiation, Parenting Coordination, Separation & Divorce | Tagged , , , , , , , , , , , , , , | Leave a comment

Mediation: effective and efficient

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In its recent report, “A Case for Mediation: The Cost-Effectiveness of Civil, Family and Workplace Mediation,” MediateBC thoughtfully explores the inherent worth of civil, family and workplace mediation.

The report points out the cost savings from sharing the cost of one mediator, instead of each party paying a lawyer to negotiate or go to court. Unlike more adversarial approaches, mediation does not follow the court structure and/or system which can prolong a settlement and elevate stress and misunderstanding.

As the report notes, conflicts are inevitable because relationships bring different people together. Mediation offers the opportunity to negotiate a collaborative solution, because:

Both parties are Invested: Mediation often cultivates an environment of participation and collaboration: Conflicts are often resolved quicker and without court action. The opportunity to participate in mediation means that parties actively play a part in the decisions and outcomes of the case – an empowering and budget-friendly way to resolve conflict.

 It establishes a Common Ground: Mediation cultivates the establishment of a ‘common ground.’ Parties are given the opportunity to expose and present their own points of view. This enables all parties to better understand the true nature of the dispute.

For more information, read this excellent report!

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It’s brilliant: Family Dispute Resolution in the UK

I just attended the annual Dispute Resolution conference sponsored by Britain’s legal family DR organization, Resolution.

UK family lawyers Alex Verdan (L) (Four Paper Buildings) and Felicity Shedden (R)(Shedden Family Law) with Hilary Linton at the Resolution DR Conference 2014

It was among the best family dispute resolution events I have attended. What made it so good?

1. The quality of the keynote speakers. They included:

-Professor Anne Barlow of the University of Exeter who delivered a passionate keynote address on her groundbreaking research comparing the key dispute resolution options available to separating couples–mediation, solicitor negotiation and collaborative law. (At the time the research commenced three years ago, family arbitration was not permitted in the UK. This has recently changed— more on that later.) The report she co-authored with Rosemary Hunter, Janet Smithson and Jan Ewing, Mapping Paths to Family Justice, is a must-read for anyone delivering family law dispute resolution in any jurisdiction.

-Dr. Miriam Silver, a noted UK psychologist who specializes in speaking and writing about the impact of conflict on children. Her talk was riveting and informative.

-Jamies Pirrie, a leading British family lawyer, mediator, arbitrator and progressive thinker whop spoke about how we can do better work for more families and, particularly, children affected by separation and divorce.

2. The apparent dedication, passion and commitment of the organization’s leaders. You can identify the health of an organization by the “feel” of its conference. This conference drew together about 200 leading family law practitioners from across the UK. The extensive seminars on a wide range of topics were not only well attended but were highly interactive. The level of engagement and positive warmth throughout was remarkable.

3. The genuine curiosity and commitment to excellence of the people attending. Few if any attending this event were there to self-promote. Rather, the atmosphere was one of open learning, sharing, and enthusiasm for new ideas. This is a group that truly embraces the concept of best practices.

4. The structure of the event. There was an informal reception and dinner the evening before, and a full day of highly engaging panels and workshops. Everyone left at 4:30 when the day wrapped up, with a high degree of satisfaction with what they had contributed and learned.

The twitter verse using the hashtag #DRconf2014 was buzzing for the entire day and since. No wonder— this was a rare experience and I am so honoured to have been part of it.

Posted in ADR Training, Arbitration, Collaborative Practice, Custody of children, Diversity, Domestic Violence, Family Law, Inspiration, Lawyers, Mediation, Negotiation, Training | Tagged , , , , , , , , , , , , , , , , | Leave a comment