1. Mediation is only for people who communicate well with each other.
In fact, many people who come to mediators are not speaking to each other. And almost all have serious problems in their communication. Mediators are professional communicators whose skills include helping people speak to and listen to each other in constructive ways. Mediators can use many different techniques and processes to help people who feel they cannot be in the same room together, let alone find common ground on matters they seriously disagree about.
2. Mediators are biased in favour of joint custody.
Although research shows that shared custody is more likely to result in mediation than litigation, this does not prove that mediator bias is the cause. Most mediators have no preference about the outcome of the mediation at all; their only bias is about the process. Mediators must ensure that the process is a fair one, and that each party has equal and fair opportunity to hear and be heard. Although many mediators are knowledgeable about the benefits of shared parenting, they also believe that parents in mediation are best able to decide what is best for their children. A good mediator is capable of focusing her efforts on the needs of the parties to the mediation, and helps them each achieve their own goals as much as possible.
The statistics probably reflect the goals of those attending mediation, rather than the bias of the mediator. Research shows that people who choose mediation have more confidence in the other parent’s abilities, are better able to acknowledge the other spouse’s positive qualities, and are more accepting of their share of the blame. As such, they are more willing to resolve the conflict in a way that takes the other parent into consideration. (Mediation Research, K. Kressel and D. Pruitt, Jossey-Bass 1898, p. 266-270.)
3. Women do worse in mediation than men.
There is a great deal of mediation and communications theory around the imbalances between men and women when it comes to negotiation skills, financial knowledge and confidence in dispute resolution. In practice, however, men and women all have their own strengths and weaknesses which make gender-based predictions of outcome unreliable and unrealistic. Research shows that men and women are both are generally more satisfied with mediation than litigation. (See Mediation Questions and Answers for more information.)
4. Mediation does not work for people who feel intimidated by their spouse.
For many people, mediation is an empowering experience. One of the goals of mediation is to empower people to make decisions that are consistent with their real goals and needs. The mediation process can do that by helping the spouse who feels intimidated gain strength through identifying and expressing his or her needs, gaining knowledge and the experience of standing up for him or her self. Research shows that even those who one would expect to be most intimidated˜victims of spousal violence˜felt better able to stand up for themselves in mediation than their spouse did. (See Mediation Questions and Answers).
5. Mediation is not a reliable process for fairly resolving complex financial disputes.
In fact, the mediation process is very well-suited to complicated dispute resolution. The mediator’s job is to ensure that the parties have all information and advice they need in order to make informed and voluntary choices. Family mediators who are lawyers are familiar with the extent of financial disclosure necessary for parties to make such choices. The process of financial disclosure is generally much more efficient, inexpensive and understandable for the parties if they are working through it together. The mediator can arrange for the parties to jointly retain any experts needed, such as an accountant, valuator or actuary, saving the parties time and money, and increasing the possibility that a “win-win” solution can be found. And the mediator will ensure that the parties have access to all the legal and other advice they need.
6. Nice guys finish last.
Many people entering mediation have a fear of being taken advantage of. The level of trust between separating spouses, and their lawyers if they have lawyers, is understandably low. Mediation is a very “open” process in which there is little room for negotiating “tactics”. Being asked to drop the tactics and be open and honest about what you really want is likely to make anyone going through a separation feel even more exposed and vulnerable. But this is where the mediator comes in. The mediator knows, from her initial interviews, what each party really wants. It is her job to keep the parties on track, to pull them aside in private if they seem to be “giving in” and make sure that they are making voluntary and informed choices. And to call for a break in the mediation or recommend a further legal consultation if either party feels he or she is being taken advantage of.
7. Mediation should never be used if there has been violence or abuse in the relationship.
Research shows that a startling number of women who are separating from their male partners have suffered physical violence at the hands of their partners. One of the most important ethical guidelines for mediators is that they should “do no harm”. There is a great volume of mediation theory suggesting that mediation will be unsafe and unfair for such women, making this is an extremely difficult and politically sensitive issue.
However, mediators, even more than family lawyers, study the dynamics of violence and abuse and use “screening tools” to learn whether either party in mediation has suffered from physical violence or emotional abuse. Most mediators are well-trained and experienced in using processes that address safety and fairness for women and men who have experienced violence and/or abuse but want to try mediation anyway. And recent Canadian research shows that women who have experienced violence in their relationship are probably safer in mediation than if they are negotiating with lawyers or are litigating. (See Mediation Questions and Answers for more information.)
Given the adversarial nature of legal proceedings, including the signing of affidavits, this finding is not surprising. One study shows that victims of relationship violence felt as empowered by the process as non-victims. (See Mediation Facts and Figures). Provided that the mediator is well-trained to screen for and recognize the existence of violence between the parties, has sound instincts and judgement, and is experienced in administering the various process techniques for addressing the presence of violence, mediation may well be the best option for victims of violence.
8. Mediation is mostly used by people who can’t afford lawyers.
In fact, the opposite seems to be true. Research shows that mediation clients, generally, have better incomes, are better-educated, have greater insight, are younger and are more motivated to settle than the clients who use only lawyers. Their disputes are no less complex than those dealt with by lawyers. The clients of mediators tend to believe that their spouse is more honest and fair-minded than the clients of lawyers, and they have a greater ability to recognize their spouse’s positive qualities. Research also shows that the more exposure mediation clients have to lawyers, the less likely they are to settle their case in mediation. (See Mediation Questions and Answers for sources and more information.)
9. Mediation is dangerous because it is open to abuse and bad faith.
This view is held by many lawyers and is understandable considering the environment in which they work. Many lawyers operate in the adversarial litigation arena where nobody can be trusted and bad faith, sadly, abounds. (Note that the increasing popularity of collaborative family law is a clear response to this reality.) The lawyer’s job includes protecting his or her client from unfair and abusive tactics of delay and non-disclosure. Yet clients who choose mediation are willing to assume this risk, perhaps because they do have greater trust in the honesty and fairness of their spouse than the clients of lawyers. And the mediation process is designed to detect and weed out bad faith quickly. A good mediator can figure out pretty quickly if one party is acting in bad faith and has the authority to terminate the process immediately. The Agreement to Mediate specifically addresses ethical issues of honesty and bad faith. And judging from the evaluation results of Ontario’s Mandatory Mediation Program, bad faith is not a big problem even in mandatory mediation. In practice, this is an obstacle that mediators rarely encounter.
10. Anybody can call themselves a mediator.
While it is true that there is no provincial or national regulatory and licensing body for mediators, mediation training is quite rigorous. There are many certificate and degree programs in Alternative Dispute Resolution that require many, many hours of theoretical and practical training. The certification requirements of some mediation organizations are extremely demanding. And many mediators hold certificates or degrees and have years of practical experience in other related disciplines such as law, social work, education and the medical professions, making them very able and qualified to mediate disputes competently and fairly.