Divorce Mediation: Mediator Styles

I have a 25 hour beginning family law mediation course on DVD which I sell on my web site and Amazon.com.

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As a result, I get questions about how to mediate from some of the “students” of this taped course.  One in particular, a lawyer up north, is my new pen pal of sorts.

I’m delighted he’s using the materials. But I was a little surprised when he said that he feels like the “evaluative” style of mediation is best and helps people reach better agreements faster.

The evaluative style of mediation is how I was originally taught to mediate back in the 90’s in a court sponsored mediation program.  Basically, an experienced lawyer or judge will evaluate your case and tell you what the most likely outcome in court is, and then try and talk you into doing that.

What I found was that this method worked in the moment; parties reached an agreement. But because the parties hadn’t had much input into the process, these agreements tended to fall apart pretty quickly because the outcome was what the lawyer thought (or in the case of this particular mediation program, what I thought) and not what the parties wanted (or at least what they could live with).  And the people landed back in court.

Over the last 13 years in our mediation-only practice, I’ve learned the value of hearing the parties’ perspectives and goals, and I do a lot more listening than I used to do.  The agreement that is reached needs to work for the parties—the people who are living with the outcome—and not necessarily for me or my ego.

So while I’ll offer a suggestion if the parties are stuck, and I’ll educate them about the law, my days of starting the discussion off with “here’s the law and here’s what would happen in court” are over.

And each year that I mediate, I listen more and push less.

I think that the evaluative style is adopted by attorney-mediators, particularly early in their mediation careers, because it’s what we’re used to as attorneys:  back when I represented individual clients, I told them what to do. I told them what I thought would happen in court.  So when I became a mediator, I did the same thing. I just had 2 people in the room instead of one.

This model was comfortable to me. What I was missing is that a mediation is not about the mediator…..it’s about the parties.

When it’s all about the mediator and not about the people involved, it’s easy to alienate one of the parties…the person who’s “wrong,” so to speak. And then what happens? The mediation falls apart. And let’s face it, who likes to be told what to do?

As I’ve gotten more comfortable mediating, I’ve also gotten much less evaluative. 

What I’ve found is that most people are pretty sensible (yes, even the people who are behaving kind of wacky because divorce is a crazy-making time), and that they’ll  make a good decision if they have the right information, time to think about it, and emotional support as well as professional support.

So we do a lot of educating in our office.  We reality-test each of the possible choices people can make.  Is it feasible? Can you afford it? Can you really adjust your schedule to honor the parenting plan you’re thinking about? Does it fit with your short and long term goals? If it doesn’t feel fair, does it feel fair enough?

And if the answer to any of these questions is no, then we keep working.

I miss trial work. Doing trials was fun. It indulged my inner actress and let me show off everything I learned in law school (which was mostly that if you prepare like crazy, you usually win). But it wasn’t so good for clients and their families. Even if your client won, by the time they won they’d alienated their former spouse, spent most of their savings on attorneys fees, and often they’d put themselves and their kids through an emotional wringer.  Not much of a win, huh?

What I’ve learned as a mediator is that couples who are divorcing have more in common than they think they do. Most of the issues that cause trouble aren’t legal questions. They’re relationship issues, or money issues, not so much something I need to research in a law book.  And that given the right kind of information and an opportunity to discuss and think about the situation, they can come up with a solid, sensible, and fair decision that works for everyone.