Best Practice In Case Management
Diana L. Mercer, Attorney-Mediator, ACR Advanced Practitioner Member
Tara Fass, LMFT, Therapist-Mediator
Peace Talks Mediation Services
8055 W. Manchester Ave., # 201
Playa del Rey, CA 90293
Click here to download Additional copies of the handouts given out at the presentation..
Introduction:Case management begins long before your first mediation appointment. As the field of Alternative Dispute Resolution matures, reflective practitioners will find that willingness to mediate or work collaboratively doesn’t necessarily translate into cases that are easy to settle. Sophisticated case management protocols are needed to address the special requirements of more complex and higher conflict cases. This workshop will give practitioners a framework for developing their own Best Practices for the changing families of the 21st Century.
- Identify Best Practices in case management
- Develop a checklist of case management issues
- Discuss approaches for practical problems
- Focus on ethical issues within case management
Learning Objectives: Practitioners will use the information in this seminar to develop Best Practices Protocols to use in their internal case management systems to allow them to work with more complex and higher conflict cases in an ethically sound and reflective way.
I. What is internal case management, as opposed to management of the case?
II. Why case management is needed, especially in more complex and higher conflict cases
III. Identification of case management issues:
- Identifying the professional’s role vs. the professional’s functions
- Reconciling the different professional cultures among the other professionals involved in the case (e.g., attorneys,therapists, accountants, coaches, child specialists) and working with other professionals
- Anticipating racial, ethnic, socio-economic and cultural differences and related planning
- Professional consultation, case conferencing and study groups
- Children’s input as part of a Family law mediation or collaborative case
- ADR as a therapeutic process, vs. therapy itself
- Product vs. process, and pacing a case
- Maintaining confidentiality and other ethical pitfalls
- Using caucuses
- Protocols for domestic violence
- Dealing with high conflict cases
- Handling follow-up
- Billing management
- Making referrals to other professionals
- When to let clients go, both temporarily and permanently
- Identifying your Signature Style and the Riskin Grids
IV. How to conceptualize and develop your own protocols to deal with the expanding field of ADR in the 21st Century.
I.What is internal case management, as opposed to management of the case?
Internal Case Management is the thoughtful, detailed work of developing, re-developing and re-visiting your office practices, your thinking about how the external mechanics and internal dynamics of cases work, and whether and how you will handle the variety of types of cases you will come across in your practice.
Case management involves your actual office practices, such as:
- Convening cases (getting clients in the door for the services you offer);
- Case review, both a system for regular review as well as more urgent,unscheduled reviews;
- File organization;
- Returning telephone calls and telephone protocol;
- Defining and articulating the boundaries of your roles and functions as well as what services your office provides and does not provide;
- Incorporating your human touch without jeopardizing the case or your ethics;
- Confidentiality and release of copies and information to clients and others, rules for yourself as well as other professionals and staff;
Case management also involves more internal practices, such as:
- Understanding that as professionals we may be “helpers” or “advocates” or a mix of both. In these kinds of roles we’ll encounter a dynamic with the client in which the client is using the professional as an empathetic guide, i.e., the professional is bonded closely enough to access the client’s trust and understand the client’s situation and needs, yet is a separate and trusted psychic entity able to distance himself or herself to still act as a guide. For example, to each party the message is, “I respect your vulnerabilities and hold both your individual and collective needs in mind. This is distinct from any personal agenda or bias I may have. In providing this function for you, I can help you access the more rational and thoughtful, yet feeling, part of yourself. I work with you individually and collectively to mobilize your enlightened self-interest.”
- Helping yourself to recharge your energy, both psychically and physically, as the work can be very draining and challenging, i.e., case management as self-care;
- Regaining your perspective, checking for bias, transference, counter-transference, and your own resistance to change or new ideas in a psychically clean environment, so you can avoid becoming judgmental or evaluative;
- Understanding who you are and where your skills can work, the types of cases you can and will handle, and when to refer elsewhere.
Contrasted with Management of the Case: by doing internal case management, the external case management tends to fall into place. Cases and situations are less likely to take you by surprise, and you know how you’ll handle more challenging cases and situations, and when there are problems or fallout, you’ll know how to handle it.
II.Why case management is needed, especially in more complex and higher conflict cases
As mediation becomes more well-known and popular, the range of people wanting to try mediation is much broader, and as a consequence you may find your practice with more challenging cases than ever before. In our family law mediation practice, we’re finding an emerging trend toward a cultural norm that divorcing couples, parents, former spouses, and families prefer not to litigate. As a result, the cases and personalities involved in the cases are more challenging than just a few years ago, particularly in the self-referred mediation cases. We believe the same trend is true of civil cases as well.
In addition, if as a professional you are taking care of yourself and avoiding burn-out, you need case management in order to help you to do this, whether it’s streamlining routine office procedures or developing a protocol, both internal and external, for dealing with difficult cases and participants, e.g., domestic violence cases, narcissist/borderline couples, histrionic/obsessive-compulsive couples, dependent/schizoid couples, passive-aggressive/perfectionistic-caretaking couples as well as clients with little self-awareness. When we mention “couples”, this refers also to parents and adult children, family businesses, business partners, and even “strangers” involved in business transactions and personal injury cases. While some of the common pairings of difficult married couples may recur in family cases, these individuals are not immune to civil suits as well.
Good case management also helps you minimize the likelihood of liability and safety issues, insurance concerns, malpractice, and ethical quandaries.
Once you practice good case management, it becomes second nature. You’ll begin to use good case management as a preventative measure and regular practice rather than as a rescue effort after trouble has already erupted.
Some examples of case management use in our office:
- A worried client calls attorney-mediator. Mediator knows that client has no legal basis for worrying, as statute clearly protects client’s articulated concern. Mediator suggests client call his or her individual attorney, but client says he/she has already done so and has a copy of statute and legal information, yet client still just as worried. Case management: how to identify the difference between actual legal worry (client’s articulated problem) and client’s actual worry (reading between the lines) and handle client’s fears and concerns without stepping out of mediator role or going beyond professional’s skills (mediator is lawyer-mediator, not therapist or individual counsel).
- Infidelity in a high asset marriage has occurred while the only child of a ten-year marriage is a young infant. This has resulted in the mother/wife immediately filing for a divorce. Each session includes highly emotional outbursts stemming from exploration of painful history, namely that their relationship started as the husband’s infidelity with his first wife. This seeming repetition of events potentially overtakes the negotiation. Case management: with consent of both clients, co-mediation is practiced from the introductory session onwards for financial as well as child-related discussions. Private sessions for each party and caucuses within each co-mediation session are added and the mediations take place over several months, rather than the more customary and relatively rapid pace of the legal processing of the divorce. Clients are encouraged to bring their draft agreements into their personal therapy as well as to their individual lawyers, accountants and the child development specialist whom they have consulted with since the child’s birth.
- Wife seeks divorce after husband of 30 years reveals he is engaged in an extra-marital affair that he would like to pursue for his long-term future. This occurs a few months after the violent death of the adult firstborn child of the marriage. Our office is contacted several weeks prior to the first anniversary of this son’s death. Case management: with consent of both clients, co-mediation of all issues from the introductory session onwards. An agreement is made between all parties that the commencement of mediation must wait until after the anniversary date of the son’s death, which coincides with his birthday. Until mediation commences, the parties will continue to carry out their informal parenting and financial agreements. The husband/father will continue to attend his individual therapy. Wife/ mother refuses to continue with her individual therapy though she is willing to meet with a career counselor recommended by the mediator. Husband/father agrees that wife/mother can have extra telephone time with therapist/mediator as long as he is aware of those sessions after they occur. After the first session, extra co-parenting sessions with the therapist-mediator are added because the only surviving child of the marriage, a teenage son who is not coping well, refuses psychotherapy for himself, though he is interested in meeting with an educational counselor recommended by the mediator to aid in planning for college. Through questioning of the parents the surviving minor son is determined as not harmful to himself or others at this time.
III.Identification of case management issues:
A.Identifying the professional’s role vs. the professional’s functions
This section was inspired by reading and discussion of Judith Roth Goldman, Ph.D.’s doctoral dissertation 2003.
Role: The professional’s role is the position for which he or she has been hired. Some examples: a professional might be a mediator, therapist for adult or child, therapist-coach, collaborative law therapist-coach, evaluator, collateral contact therapist in an evaluation, litigation attorney, mediation support attorney, collaborative attorney, business valuation expert.
Trouble starts when roles begin to blur within a single case. A therapist-mediator cannot also be a treating therapist for one of the parties or the couple. A lawyer-mediator cannot also be one party’s individual attorney. A business valuation expert cannot also give tax strategies and advice. Although some mediators practice an evaluative style, they cannot act as arbitrators or ultimate decision-makers. Although many of us are hired for different roles in different cases, each of us has only one role for each case.
Function: Although the professional has been hired for a discrete role: his or her position or task in a case (therapist-mediator, litigation attorney), he or she may also be able to use different skills from his or her professional background and have different functions, which are necessary or helpful to the client(s) within that one case, consistent with his or her role in that case.
What functions you will be comfortable providing within any given role are discretionary within the ethical boundaries of your underlying profession. The examples we’ve provided below are guidelines only, and are not necessarily where you’d set your individual boundaries with respect to functions you’d fulfill within any given role.
Therapist-mediator: Role is mediator.
|Appropriate functions for therapist-mediator||Inappropriate functions|
|Taking a detailed family history for the purpose of understanding the circumstances of the children’s lives.||Treating the children.|
|Identifying interpersonal dynamics in the couple’s interactions that contribute to the couple’s conflict||Exploring the couple’s dynamic for the purpose of marital reconciliation|
|Identifying the consequences of the above as it affects the children in the family system||Treating the children|
|Translating the parties’ individual and collective experiences of the conflict by putting words to feelings.||Interpreting the meaning of such experiences to a generalized context beyond the issue at hand|
Attorney-mediator: Role is mediator
|Appropriate functions for attorney-mediator||Inappropriate functions|
|Providing both clients with copies of statutes on a given issue||Giving legal advice to one party|
|making settlement suggestions||insisting on a settlement option|
|pointing out where differences of opinion might exist||endorsing one option without acknowledgment others exist|
|referring both parties to several attorneys||representing one party|
|if mediation breaks down, and stepping down from case||if mediation breaks down|
Permissible functions are completely dependent on the role for which the professional was hired. You’ll note that the “inappropriate functions” in this example are inappropriate for an attorney-mediator, but that many of them would be appropriate if the attorney was hired as a litigation attorney or advocate. Likewise, the “inappropriate functions” for the therapist-mediator would be appropriate for an individual’s, couple’s and/or child’s therapist, depending on how the parties originally contracted for treatment with that therapist.
B. Reconciling the different professional cultures among the other professionals involved in the case (e.g., attorneys, therapists, accountants, coaches, child specialists) and working with other professionals
It’s important to recognize and understand the different functions within each professional’s role. Depending on your own role, it is appropriate to recognize where the other professionals’ boundaries and ethical considerations might lie.
Example: It may be expected for a litigation attorney to attempt to get a therapist acting as a collateral contact in an evaluation to give out more information than the therapist’s ethics allow. If the attorney’s role is as a mediator, however, the expectation of what he or she might ask of the therapist might be different.
Example: It might be expected for a couple’s therapist to explore possibilities for reconciliation of the marriage. If the therapist’s role is as a mediator, however, the expectation is that the couple is moving forward with the divorce and any ambivalence over the decision is to be explored in another context. The therapist-mediator may raise the issue of the ambivalence as one worth exploring, but not to be resolved in the context of the mediation.
Think twice about your role and permissible functions before acting. Anticipate what each professional’s culture might encourage given his or her role in any particular case.
C. Anticipating racial, ethnic, socio-economic and cultural differences and related planning
Some categories of diversity come to mind easily, e.g., racial, ethnic, religious, gender and nationality issues. Others are not so quickly identified but can influence the climate in the mediation room as much or more than those which are more obvious. A few examples:
- Individuals from cultures torn by war;
- Individuals from traumatized cultures;
- Persons with a traumatic personal history;
- Geographic differences between regions of one country or state, e.g., New Yorker and Californian, Southerner and Northerner;
- Degree of practice within a religion, or Atheism;
- Political leanings, from Conservative to Liberal, but also lifestyle politics, like a vegan lifestyle;
- Socio-economic class.
This list is by no means exhaustive, but designed to help you think about the different issues that create diversity issues in the mediation room.
Within these diversity categories, other nuances may exist which are influenced by all of the above, for example:
- Mores about openness to therapy and helping professions;
- Trust in the government;
- Trust in lawyers, insurance companies, authority in general;
- Trust in the court system, and justice system;
- Willingness to communicate with persons inside and outside the family about financial or personal matters, physical health or family secrets;
- How trauma is handled;
- Parenting styles, e.g., authoritarian,laissez-faire;
- Acceptable gender roles;
- Tolerance for conflict;
- Negotiating styles.
All of these things (and more) can influence what happens in the mediation room.
As a mediator planning for a mediation session, and using good case management, it helps to anticipate where some of the diversity issues may create conflict or impasses to settlement. To advance-plan a session with new parties based only on their anticipated ethnic or cultural backgrounds would likely do more harm than good, making it difficult to abandon pre-conceived notions about who the parties are likely to be as individuals once you’ve started to work with them. Yet, to completely ignore and fail to anticipate likely diversity issues would be equally as irresponsible.
If you find yourself working with particular groups of people often (whether it’s Koreans, union members or Southerners), it would be worthwhile to learn more about that group’s culture and their norms and mores. It not only gives you insight into their culture, but also credibility in the mediation room when you can convey that you understand some of the clients’ backgrounds.
This section is only a very brief introduction to a vast opportunity to explore diversity in mediation, but a fascinating line of inquiry and an opportunity to bring a higher level of artistry to your mediation practice.
D. Professional consultation, case conferencing and study groups
Therapists are familiar with the idea of case conferencing, and many lawyers belong to study groups. Since many mediators work alone, it is often helpful to review cases in a confidential way with our colleagues, peers and mentors.
Other examples of professional consultation:
- Continuing education and conferences;
- Case conferencing;
- Study groups;
- Mentoring and professional supervision;
- Participation in a listserv or online discussion group;
- Informal meetings and lunchtime discussions, either at your office or more formally at a meeting such as the Los Angeles Superior Court’s brown bag “lunch with a judge” series;
- Case conferencing through professional organizations such as the Los Angeles Collaborative Law Association;
- Self-study and reading journals, articles, books.
E. Children’s input as part of a mediation or collaborative case
Although this is an issue which most people think of as a family law issue, it can also come up as part of an accident case, in school peer mediation programs or anti-bullying programs, cases involving adoptions, or victim-offender programs as well.
The threshold question is whether you would consider including the children in a mediation or collaborative case. If you will not include children, consider how you will address the questions of parents asking that the children be included.
If you will include children, good case management practices will mean you’ve considered in advance how and when you’ll include children. For example:
- Would you meet with the children separately, or as part of a mediation session or collaborative meeting with their parents?
- If you wouldn’t meet with the children, what contact, if any, would you have with the children’s attorney or guardian ad litem?
- If you’d consider meeting with children, what ground would you cover first with the parents, before the children are in the room or contacted in any way?
- Would you limit your discussion with the children in any way?
- How would you conduct your discussion, given the sensitive nature of the topics you’ll cover?
- How will you handle the duty of confidentiality you owe to the parents and to the children? How will you explain your confidentiality policy to the parents and children? Will you have a written explanation, in addition to an oral explanation? Do you want or need a waiver to be signed?
In a family law case, one way for the children’s wishes to be considered but without the children having to participate in a mediation session is through a Brief Confidential Evaluation.
The Case for Brief Confidential Evaluations
In Child Custody Disputes
by Tara Fass, LMFT, Richard Gilbert, Ph.D.,
Diana Mercer, J.D.
Copyright 2003 Tara Fass, LMFT, Richard Gilbert, Ph.D., and Diana Mercer, J.D.
Court mandated child custody evaluations (CCEs), Civil Code 730, are well-intended investigative instruments designed to aid bench officers in resolving custody issues. They have numerous shortcomings, however. By way of background, in the past, a CCE would start within a few weeks of the original order and take approximately 6-8 weeks to conduct publicly through Family Court Services or through private practitioners, and settle either in or out of court. In Los Angeles, the current wait time varies, but is never less than two, and can be up to, four or more months to commence. Civil Code 1257.3 was adopted in 1999, ushering in the present era of court ordered partial evaluations, which are known in the field by several different names. The court’s version is the Fast-Track Evaluation which routinely includes oral testimony, but not a written report, by the evaluator. This quickly replaced the term Mini-Evaluations because the nomenclature was roundly viewed by everyone as having being inferior. Allen Gottfried and Kay Bathurst developed the methodology and coined the term for Focused Issue Evaluations, which generally includes only a written report, while Rapid Response and Limited Scope Evaluations are yet other terms in use.
The idea behinds partial evaluations came into being as a practical and clinical solution to the problem of the overwhelming case load leading to delays in decision making as well as the fact that some CCE’s involved non-clinical parents and specific, time-sensitive issues such as whether or not overnights should be granted to the non-custodial parent of an infant, where a child would go to school or would a child be allowed to move-away from the legal jurisdiction. The goal was for these shorter evaluations to be completed and heard within one or two weeks of the initial court order requesting it. Ironically, these instruments are also in such high demand that the waiting time in court to start the fast-track evaluations is as long, or longer, than what used to be the optimal timeframe for conducting the full CCE. Paradoxically, approximately a quarter of all court generated fast-track evaluations recommend full evaluations as part of the evaluator’s testimony and recommendation.
Additionally, for some time now it has been recognized that all too often, an unintended consequence of the full and partial CCEs has been that the evaluative process, in itself, not only prolongs the time and money spent in court, but also adds to the despair and dysfunction families experience as they struggle to heal and regain stability post-separation. The conventional wisdom increasingly is that court-ordered processes have become iatrogenic to divided families, meaning that the ‘cure’ worsens the ‘condition.’ A by-product, or dual purpose, of the partial CCE’s was the hope it would address the harsh reality that the family court system needed to find ways to speed up its work because it could not increase its capacity fast enough to keep up with the burgeoning case load and that many cases bound for a CCE were not clinical type cases. The increasing awareness is that while these newer instruments are clinically and legally interesting in terms of approaching divided family issues, the problem remains that it takes place within the system that appears to be not only iatragenic, but collapsing under its own weight, particularly in light of today’s looming budget deficits.
This is why the promise and purpose of mediation, which is to resolve disputes by means other than litigation, has been the best idea in family law for the last twenty years. It is true though, that at times, couples involved in mediation find themselves deadlocked regarding important issues of custody and/or visitation. In response, one or both parties may wonder what the disposition of these issues might be if they were litigated rather than resolved through mediation. Forrest Mosten in his textbook, The Complete Guide to Mediation (1997), proposes the use of a hybrid mini-evaluation, called the Confidential Mini Evaluation. We propose calling this new and promising tool in the field of mediation a Brief Confidential Evaluation (BCE) because it highlights the brevity and confidentiality of this instrument. From an attorney’s and a client’s perspective a BCE has a number of significant advantages over court-ordered custody evaluations.
First there is the issue of confidentiality: BCEs are private and discreet, whereas, in contrast, court-ordered custody evaluations are conducted in a public forum. Privacy is particularly important if your client has a high-profile or engages in an eccentric or questionable lifestyle. No portion of the BCE would be admissible as evidence in court and the evaluator could never be called as an expert witness in the case. The BCE could be seen as an excellent discovery technique and could reduce the risk of miscalculating your client’s ability to “win.”
Second, you and your client define the parameters, the timing, whether or not there is a written report and if collaterals or the children are interviewed. Unless there is a compelling need that is endorsed by both parties, the child or children who are the subject of the dispute are not included in the BCE. While information obtained from the child or children is always included in a court-ordered evaluation, and can be helpful and important, BCEs make every effort to shield the child or children in question from the stress and loyalty issues often generated by a formal custody evaluation.
By having a BCE, conducted by an evaluator with experience in court-ordered evaluations, the parties can learn the process, and likely outcome, of a litigated approach to the contested custody issues without having to go to court or leave the mediation process behind. In many cases, the knowledge derived from the BCE can help break the existing impasse and increase the likelihood of finding a mediated solution to the relevant issues. In this way, the parties can avoid the considerable time commitment, cost, stress and exposure involved in pursuing a court action. If nothing else, perhaps the parties can gain a perspective on their situation that had not previously occurred to them.
Even if the mediator has a sense what the root causes of contested issues might be, in order not to develop and dual relationship and to maintain neutrality, the mediator cannot deliver such insights or information. Besides, most mediators in family law are not child development specialists informed of the current research in child development and divorce-related issues. In choosing an evaluator, the parties must be confident that great value is placed on conducting evaluations which are fair and impartial toward each party, respect the value of both parent-child relationships, and maintain a consistent focus on the best interests of the child or children that are the subject of the evaluation.
Added value to the BCE, and congruent with one of the fundamental values of mediation, is that to the extent possible, the parties should be self-determining. For instance, if one of the recommendations is for one or both parents to have therapy or parenting classes, if the parties can grasp the wisdom of those recommendations they can maintain face and pride by voluntarily entering into treatment, without having to be ordered, and not risking tainting the treatment or the mediation. The attorney has strengthened the case by having more manageable as well as more presentable clients. If the case were to litigate, the evaluative process would have to start over, though there could be an opportunity to mediate after the BCE and before court.
Thirdly, BCEs offer rapid results at a lower cost than a full CCE. The entire BCE, from the initial interviews with each party to the communication of findings and recommendations, can be completed in one to two weeks, based upon the availability of the parties. This is in contrast to court-ordered custody evaluations which often take six months or more from the time the evaluation is ordered to the submission of findings and can be extremely expensive, often costing seven or eight thousand dollars or more, without any guarantee of the final expense. Because it is customary to bill full evaluation services on an hourly basis, the parties are unaware at the outset what the eventual cost will be.
In contrast to the BCE, there is a fixed cost for 10 hours of service, generally in the ballpark of $2750. This cost covers all interviews with the parties and collateral contacts, administrative expenses incurred by the evaluator, time spent reviewing the parties’ questionnaires and any written materials, as well as a feedback session to go over the findings and recommendations with their mediation team. Thus, BCEs avoid having the parties go through a protracted period of stress and contention while having the child or children remain in a custody and/or visitation arrangement for an extended time that may not be in their best interests.
The steps leading to a BCE are simple and straightforward. After a divorcing couple decides to initiate a BCE, each party is sent a questionnaire to fill out. The questionnaire asks them to provide information regarding their personal, family, and marital history, their perceptions of the child or children’s developmental needs, and their views regarding the most desirable custody or visitation arrangements. In addition, parents are asked to provide contact information for important collateral relationships in the child or children’s lives (e.g., a nanny or other important, substitute-care provider; a pediatrician; a teacher; a therapist, etc.) and release granting approval for the evaluator to speak with these individuals.
After completing the questionnaire and collateral contact information, the parties forward their written materials to the evaluator along with full payment for the evaluation. The evaluator will then contact each party and arrange initial, individual meetings. The purpose of the initial interviews is to review, clarify, and expand upon the information provided in the written materials. The initial interviews generally take about 1.5 to 2 hours each. After the initial interviews, the evaluator will conduct telephone interviews with relevant collateral contacts and then arrange an hour-long follow-up interview with each party, including the children, if the parents agree that is necessary. Finally, the evaluator will organize the findings and recommendations of the evaluation and arrange a conjoint meeting with the parties and the mediation team to orally communicate the results.
|Reviews Questionnaires/Written Materials||1 hour|
|Initial Interviews with each party||4 hours|
|Telephone Interviews with Collateral Contacts||1.5 hours|
|Telephone Follow-up Interviews with each party||1.5 hours|
|Organization of Findings/Preparation for Feedback Session||1 hour|
|Feedback Session with the Mediation Team||1 hour|
F. ADR as a therapeutic process vs. therapy itself
The discussion of the therapeutic elements of mediation versus how therapy differs from mediation could be the focus of an entire presentation. What follows is a brief overview
In the therapeutic literature, one of the hottest topics is that of inter-subjectivity and a relational approach to understanding therapeutic change. According to Stuart Perlman, Ph.D. (2003):
“In my view, the terms describe an assumption – that therapeutic interchange occurs within the context that includes two separate, mutually interacting subjectivities. Within the context, I am always interested in the nature of the patient’s inner world, but assume my knowledge and feeling about the patient to be inextricably linked to the patient’s experience of me. This mutual embeddedness is so complex that I cannot, in fact, ever “know” that I am “right.” My subjectivity describes the omnipresence of my own personal reactions, thoughts, and feeling states. It is inevitably reactive to the patient and also reflective of my own self-state at any particular moment. These concepts are implicit to a variety of relational theories (see, e.g. Mitchell, 1988, Hoffman, 1991; Stolorow, Atwood and Brandchaft 1992 Stolorow, 1995).”
Inter-subjectivity speaks to the mutual shaping that transpires in the relational bonds between human beings that is the basis for all outcomes, positive or negative. An example might be that of a distraught infant who, in arching his back and looking away, is communicating very specific information. Instead of attempting to override the behavior and turn the infant back to face the parent by pulling on the baby’s arm, the parent able to “read” this infant’s disregulated behavior may react very differently. She (or he) would look a quarter turn away from the baby while using a soft tone of voice to calm him down and woo him back, and if possible not touching the infant at all while doing this. Intersubjectivity occurs when the parent’s acknowledgment that the child is overwhelmed is counter-balanced with the parent’s need for an expedient outcome. The parent’s desire for the child to go into the carseat does not override the infant being overwhelmed and the child’s need to return to the relationship on a different timeline and in a different manner than the parent has in mind. It’s a way of cultivating your influence, rather than imposing your will.
In terms of mediation, it may be that a financial settlement is being discussed and one client develops a lost, faraway, blank look on her face. The mediator notices this non-verbal behavior and comments on it by verbally checking in to see what the client is experiencing before continuing the discussion. Intersubjectivity is the willingness of the mediator to tune into and act upon an understanding which the mediator has formed based on his or her sensitivity to micro-expressions as well as verbal cues in forming a bond with the client as a way of advancing the mediation agenda.
This mutual shaping occurs through the process of developing rapport, understanding, connectivity and empathy. Engaging with our clients in this way we become what we call the ’empathetic guide.’ We attempt to do this while maintaining neutrality and without over-stimulating or further dis-regulating the clients. In the example of the baby above, though we might need to strap the baby into a car seat, the effort should be directed towards calming the baby down first to complete that task without forcing the child so quickly, hoping to distract the infant with a car ride. In so doing, we cultivate an innate understanding with the child that he or she can trust our intentions to meet the his or her needs the next time a situation like this occurs, even if our means of doing so are not obvious to the child. In the case with the mediation client, the idea is to stay on track with the client’s individual pace and to understand how and when a client becomes overwhelmed so that we can better address their concerns in order to move through the mediation process and build the foundation for a strong agreement.
This is the standard we strive for in all the various phases of building a relationship with and dealing with mediation clients. While becoming the ’empathetic guide’ is the goal, we also realize the boundaries of that role within the mediation context. It is our responsibility to make the process as therapeutic as possible without confusing a therapeutic approach to mediation with therapy itself.
For example, in our work with mediating the entire divorce, a couple might learn how to communicate better, and be given tips directly tailored to their situation to better insure their respective messages are heard. This is where the therapeutic element of mediation would likely end. In therapy, however, a couple with communication problems might also explore how their family of origin dynamics have lead to the problematic behaviors and attitudes that impinge upon their communication.
G. Product vs. process, and pacing a case
The Product that clients need is the legal divorce. That consists of the paperwork and settlement documents. The Process they go through to get there is the psychological divorce—dealing with the grief, anger and upset that goes with the death of the marriage.
In most divorce cases, there’s a tug of war that goes on between the product (the part the lawyers are focused on) and the process (the part which most clients are focused on). By rushing either the process or the product, or by rushing either or both of the parties, the settlement process falters.
For mediators, the critical challenge within this product vs. process issue is giving clients what they ask for and what they need in a timely fashion. Oftentimes clients profess that they want to work quickly through the agreement without getting into the underlying emotional issues, yet are then uncomfortable if they reach an agreement more quickly than they’d anticipated. Or, more commonly, it becomes obvious that the impasses are generated precisely by the unexpressed, awkward and often painful material that is imbued with unresolved dramatic, even traumatizing, feelings.
While the application of “product vs. process” is most obvious in a family law case, an individual’s unresolved emotional issues surrounding a negotiated agreement aren’t limited to family law. Accident cases involving severe, lasting injuries or financial hardship, dissolution of business partnerships, neighbor disputes, malpractice claims, criminal victim/offender matters, and even the shame of being involved in a collections lawsuit can stir feelings in even the most stoic individual.
Often it helps to make the mediator’s quandary transparent. For example, the mediator might say, “I’ve been instructed by you that there are only 3 hours to spend in this session, and you want to leave with an agreement on every issue. I want to help you accomplish what you’ve set as your goal, yet here we are spending time talking about your interpersonal dynamic and past arguments. I think it might be helpful if we dedicated some time to talking about the emotional issues that are making it hard to get to the business you’ve told me is important to resolve. What do you think?”
In a counter-intuitive fashion, slowing the discussion down to talk about these “non-business” issues actually speeds up the process, eliminating some of the checkmates and standoffs, arguments and outbursts and the more subtle forms of sabotage that can derail a mediation session. It’s a version of “taking the temperature” in the mediation room. Being transparent about the mediation process, checking with each of the clients (and representatives) about the pacing of the case, and articulating deadlines (both real and self-imposed) can help keep the psychological agreement process from being de-railed by the legal agreement process, and vice versa.
It is the job of the seasoned mediator through case management to regulate the flow of difficult subject matter to know when to slow down to attend to the process that then clears the path to proceed in a sound way with the task-oriented business of building the agreement.
H. Maintaining confidentiality and other ethical pitfalls
Confidentiality protocols that are unique to your profession or office need to be articulated to the clients. This should be done clearly, and in writing.
For example, in our practice, we maintain that all caucuses are confidential unless we are permitted by the party in the caucus to reveal information to the other party. The opposite policy may be just as useful and valid (i.e., caucuses are not confidential), but whatever policy you establish must be discussed with the clients before confidentiality becomes an issue.
Mandatory reporters also need to be clear, even if they think clients already understand, about their requirements to report suspected child, elder or dependent adult abuse, clear and present danger to another person, and so forth.
As part of our opening session, we also discuss what documents that we anticipate that clients will share with other persons, and with whom. Typically, clients will want to take their mediation summary letters and any legal papers we’ve prepared to their attorneys, therapists or accountants. As part of our initial discussion, we’ll articulate that we anticipate this. But do clients want to share information with others, such as family and friends? Dealing with these questions in advance is important.
In order for our office to send copies of mediation summary letters to anyone other than the parties or their attorneys who are present at the session, or court papers, we require a release: