“I became a lawyer 20 years ago to represent children’s rights. I became a mediator to assist partners in restructuring their lives in the face of a divorce, and in doing so minimize the deleterious effects of separation.”
More and more couples are participating in divorce mediation to effectively communicate about their financial and parenting matters. Particularly where families are involved, all other dispute resolution processes are dwarfed by the advantages and benefits of the mediation process. The legal fees, costs, and emotional strain entailed in starting a court action against a life partner can be daunting. Although, mediation has been in existence for decades, in the past 10 years it has progressively gained recognition as a preferred alternative dispute process to litigation and attorney-negotiated settlements. Among the reasons for its growth is the fundamental objective of the mediation process: to assist both parties in effectively communicating and negotiating solutions that are best for them, their family and their situation. Mediation seeks to empower both parties by providing information in a neutral manner, respecting and supporting each individual’s rights and feelings, acting as a resource for professional referrals, and ultimately facilitating what often can be a difficult and, at times, tumultuous situation.
What is Mediation?
Mediation is a dispute resolution process that assists parties’ communications for agreement. (See: mediate.com/articles/what.cfm). It is voluntary and confidential, and is conditioned on the informed consent of parties to actively participate in the process. It is a dispute resolution process that honors and is predicated on the self -determination of the participants involved. The parties have control over how they want the process to proceed and they have total control over what agreements are reached as a result of their participation in the process. Mediation is an all-inclusive process. The active involvement of the parties’ attorneys, third party professionals such as financial advisors or therapists, is always available to the parties and at the parties’ discretion.
There are three main models/styles of mediation used by practitioners: facilitative, transformative and evaluative. The facilitative model focuses on sharing skills and information with the parties to help them negotiate for themselves while cultivating and encouraging a platform for creative solutions that best suit the parties and their circumstances. It is a model that focuses the parties on their interests and needs rather than sanctioning their positions. The transformative model focuses on empowering and recognizing the parties’ emotions and promoting unstructured dialogue between the parties. The main objective of the transformative model is to achieve a “transformation” of the parties’ relationship or perception of each other and therefore the situation that led to the conflict. Finally, the evaluative model focuses on gathering information from the parties, identifying issues in dispute and providing the parties with the mediator’s expert opinion, based on her experience and knowledge. In evaluative mediations, prior to the mediation process beginning, parties typically request and consent in writing to abide by the mediator’s decision should negotiations fail to bring about agreement.
What Mediation Is Not
Unlike arbitration or a court action, the professional mediator has no power to decide the issues in disagreement between the parties and to obligate the parties to her decision (unless it is an evaluative mediation and the parties have agreed as state above). Rather in mediation, the parties are in total control of their decisions and their commitment to abide by those decisions. Unlike the collaborative divorce process, mediation offers a third-party professional who is there to assist both parties. In the collaborative divorce process, there is no third party neutral. Rather each party is represented by their own attorney who has agreed to assist him/her in negotiations for resolution and has agreed not to proceed to court should those negotiations fail. In mediation, the involvement and degree of the participation of a party’s attorney is determined by each party at every stage of the process. Attorneys can be active before, during and especially after the completion of the mediation process — prior to signing a legal agreement. Ultimately, it is the parties who are directly involved in the resolution of their matter. Their attorneys provide advice, counsel, and information.
Mediation is not therapy, but can be therapeutic. It affords spouses in conflict the opportunity to engage with each other in constructive dialogue. Moreover, where children are involved it affords parents the opportunity to effectively restructure what was at one time a single-family household into a two-family household. Spouses are able to express their goals and intentions. This in turn paves the road for them to focus on what is important to both of them as well as what it most important to their children. Although they may decide to end their marriage their future communications are more likely to be constructive and promote healing of their past relationship.
Mediators: What they do, training and selection
Mediators are trained to be skillful negotiators, and many have knowledge and experience in the area of Family Law. They are expert listeners of feelings and facts. Without previously knowing either of the parties nor having a stake in the matters to be resolve, mediators can readily delineate between the emotions being conveyed, and identify the information needed to assist the parties to reach agreement. As an objective, trained and knowledgeable neutral, the mediator will acknowledge and recognize the emotions expressed by each participant, identify areas of commonality, facilitate the negotiations between the parties, and explore options for resolution with the parties. This process encourages spouses to think creatively and come up with options they can customize or use as a springboard for other solutions that might best meet their needs and those of their family. The more experience the mediator possesses in the art of negotiation, the mediation process, and family and divorce matters, the more valuable she will be to the parties in assisting them to reach agreement.
Mediation as a Collaborative Process
Mediation is a collaborative process. In order for mediation to be successful every participant must be willing to collaborate with the process. Here it is important to distinguish between the process and substance of making decisions. The potential of agreement in mediation is wholly dependent on the parties’ collaboration in and to the process. For example, how the mediator is selected, what type of mediation philosophy the participants are most comfortable with, identifying the issues for discussions, setting an agenda with the parties’ priorities, exploring options, evaluating those options-all are procedural in nature and necessitate the parties’ collaboration. On the other hand, negotiating actual issues such as division of financial assets or child custody, and making decisions with regard to those issues-is the substance of the mediation.
In negotiating the substantive issues the parties’ collaboration is critical as well. Parties might have concerns about what each is entitled to under the law, and what outcome is likely on a specific issues should the parties decide to go to court. Often each party consults with their independent attorney prior to signing an agreement resolving child custody, support and all the financial issues. However in many circumstances, it is valuable for each party to obtain the advice of an attorney prior to the mediation in order to prepare for the negotiations within the mediation process as well as to consult with that attorney throughout the mediation process. Moreover, the mediation process also invites and encourages the participation of financial advisors, therapists and any other expert whose input would prove helpful in assisting the parties’ ultimate resolution on substantive matters. The singular benefit of mediation is that it is within the parties’ discretion as to which experts they wish to retain, when they retain them, and the extent of each expert’s role in the mediation process. This advantage gives parties the opportunity to realize significant cost-savings in the legal dissolution of their marriage while having the option at all times to retain third-party professionals for input and advice.
Long-Term Benefits of Collaboration
The mediation process promotes, teaches, and coaches the parties’ collaboration throughout the negotiations between the parties. Parties facing divorce are often in an emotionally charged conflict and have stopped communicating or only experience destructive communications. The information and skills learned at the mediation table to assist parties to resolve issues surrounding their divorce are the same skills that will help them have constructive dialogue beyond the mediation process. It is the triumphs experienced in reaching agreement that become the foundation for parties to re-create their family’s conversations and infrastructure.
Mediation: Little to Lose and Much to Gain.
The promise of mediation is hope. When spouses decide on obtaining a divorce, their expectations of what their lives could have been, fears of what their lives will be post -divorce, and heightened emotions about the uncertainties of their lives while undergoing divorce, often are overwhelming to each partner and result in paralysis of decision-making. Mediation has the potential to effectively address each spouse’s concerns, help them set out goals and more importantly, assist them in taking steps to achieve those goals. All situations are not appropriate for the mediation process. Where physical or emotional abuse has taken place or is feared, a party should obtain the advice of her/his own independent attorney and decide if participation in mediation would be advisable. The key for all partners, spouses and families alike is to know that there is an alternative to the judicial process. In many situations it is the better alternative.
Marti Granizo-O’Hare is an attorney-mediator in New York City. She has practiced in the area of Family and Matrimonial Law for 20 years and has been mediating family matters since 1993. She is a former Associate Adjunct Professor of Fordham Law School where she taught client-counseling and negotiation for 10 years. She has trained law students and volunteer attorneys in the mediation process. She is a member of the Association of Conflict Resolution of Greater NY and various bar and dispute resolution organizations. Ms. O’Hare has offices in Manhattan and Forest Hills, Queens. She offers a no-cost, no obligation consultation for anyone considering the mediation process. She can be reached at: 917-375-7955 or at: email@example.com.
© Copyright 2009 by Marti Granizo-O'Hare. All Rights Reserved. Permission to publish granted to GoodTherapy.org.
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