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Extended Consultation Description
Mediation Service What Mediation is Collaborative Practice
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Mediation:
What it is and how it
works
Mediation is a facilitated process for transacting necessary and often difficult business. In divorce mediation the couple knows in a general way how they can work together, but the factual and emotional content of the situation get in the way. The task of the mediator is to design and to maintain various procedures and structures to support their effort. Once the introductory session is over and the couple signs the Mediation Agreement (whether on the day of the first appointment or at a later appointment) the first working session begins. Each meeting starts with a discussion of that day’s Agenda, with the list of things that need attention at that meeting. I always ask each person what he or she thinks we need to talk about and the importance of each subject in relation to the others. Once I have this information I arrange the topics in an order that seems to me to balance their importance and the time they are likely to require. I take as long as necessary to work out an agenda acceptable to both parties, and I limit conversation to the agenda itself until we’ve reached such an agreement. It’s possible this could take up most of the session, but it doesn’t. Once the couple understands that I won’t address anything else until we get the agenda done, it gets done and becomes a small accomplishment to serve as one of the models for a way we can work on problems that seem more difficult. For a highly conflicted couple, establishing the ground rules for conversation can be challenging, and there is always pressure from parties themselves to "work on something important" and to stop "talking about how we are going to talk." "Talking about how we are going to talk to each other" is an essential prerequisite to any serious conversation. In high functioning groups there is a set of rules, sometimes expressed though often implicit, that works to enable the group to work together efficiently. When the ability of a group or a couple is compromised, the initial step in fixing the problem is the identification of the rules in effect when things were going well and the discovery of what happened. Did the rules of discourse somehow change or have external circumstances changed so that the old rules are no longer adequate? (Or have both occurred?) The only way to find out is to ask questions. The time it takes to reach agreement on the rules of discourse is a direct reflection of how well the existing rules are functioning. Most of the time this preliminary work is done in a few minutes. Where there is a deep communication problem, it will require lots of time and the couple often needs a lot of assistance to complete it. At the conclusion of many sessions, I’ll prepare a brief Summary of the work done. I don’t write minutes in a formal sense and the Summaries are not some sort of "official" record of the mediation. The Summary, when I do one, represents my impressions of the things I thought were important. Once the Agenda has been agreed upon, the first task is to see if either party wants to correct a mistake or to make an addition to the Summary of the last session. I’ve been somewhat surprised over the years to find that corrections are rare, and I can’t remember the last time someone asked to make an addition. This is not because of my talent as a record keeper. I can only guess that mediation is so essentially consensual that there is a realization that "documentation" isn’t very important, because if whatever is being "documented" can’t be remembered without a document, it isn’t part of an established consensus and therefore not important. So long as the couple is working efficiently on the appropriate agenda item I simply serve as an alert observer. When the conversation goes off-task or starts to take on a tone I recognize as non-conducive to progress, I make an "intervention." Usually, the intervention is a reminder of the topic under consideration or a reminder to each to wait until the other is finished talking before making a reply. A common and effective intervention is to simply ask one party what s/he heard the other say. Once the reply is made I ask the initial speaker whether his or her meaning was received by the other. If the answer is "yes" the feedback to the couple is that their communication loop is working. If the original statement must be repeated a dozen times before its meaning can be acknowledged, the couple learns, without being told: (a) One isn’t listing to the other in a way that allows for the intended meaning to get through; (b) The other isn’t speaking in a way that the other can hear. Where the problem is very resistant to change, I’ll serve as an interpreter. One party will speak, and I’ll immediately relate the content to the other, occasionally asking for him or her to tell me what I just said, so I know if I’m getting through. This always works well enough so that essential communication can take place and my "translation" gives the parties a bunch of examples of what works. As we work through the agenda I encourage the couple to continually ask or think about these fundamental questions: (a) Have we been able to state clearly the problem we are working on? (b) Is there anything about the way we are stating the problem that makes it more difficult to solve? (c) If we are having difficulty coming to terms with "the problem" and are there other ways to express it? 1 (d) Do we have the information we need? If not, how do we get it? (e) Have we generated enough options for consideration? (f) Have we worked out a set of criteria by which to evaluate the options we’ve come up with? As the couple continues its work and returns to these "process questions" when necessary, it finds or creates its own solutions, which are far better than anyone else could come up with. In my experience negotiation in the form of "I’ll do this if you do that" or the taking of "positions" is fairly rare. So long as the dynamic remains cooperative instead of competitive, the give and take of negotiation doesn’t seem to be necessary or particularly useful. When all the issues have been resolved and the parties tell me that they are comfortable 2 with their conclusions I will do one of two things: (a) Comprehensive report followed by review of independent counsel. I prepare a comprehensive report describing what’s been agreed to, how the agreement was reached and how it is suppose to work. Each party takes my report to a different independent lawyer who looks at the settlement from only the client’s perspective. The two lawyers serving as independent counsel will, at the very least: (a) Explain what the client is getting and giving up; (b) Make sure that the client understands what being given up and what’s being gained; (c) Determine whether my Report and the clients idea of the settlement is the same. The parties will then designate one of the two lawyers (or me) to draft the Marital Settlement Agreement and to complete all the various court forms that are required for Judgment. (If there is a minor child more than twenty different forms have to be completed.) (b) Preparation of the Settlement Bundle. The alternative to the comprehensive report is for me to skip that step and for me to prepare a first draft of the Marital Settlement Agreement and all of the court forms that are necessary. These are then collected and organized in a Settlement Bundle, which also includes anything else that I think necessary for independent counsel to review the settlement efficiently and to understand the reasons for it, the way it was reached, the way it is intended to work, and what each party is getting and giving up. We decide who gets the first independent review. When that review has been completed and the documents have been signed (after revisions if necessary) the other person gets his or her independent review. If the second review occasions more changes, the Bundle goes back to the first lawyer for approval of the new changes. There is only one Bundle and it goes back and forth until all the documents necessary for the Judgment have been signed. (c) If a serious glitch comes up, we retire to mediation to fix it. If I think it would be useful, and it frequently is, I ask one or both lawyers to participate in the actual mediation session. (d) When all the documents are ready for court, they are reorganized for proper submission and I personally deliver them to the court and get a preliminary indication that there are no apparent problems. The judgment packet is then processed and the Judgment "incorporating all the terms of the Marital Settlement Agreement" is signed by a judge, and the parties are specifically ordered by the court "to abide by the terms of the Marital Settlement Agreement." Thus, the terms agreement created by the parties are then imposed upon them by order of court. If you are going to have a court order you to do something, it’s almost always better if you are the one to decide what the "something" is going to be. The parties are never required to appear in court. There two fundamental problems regularly seen in mediation. One can be solved and the other can’t. The first involves a perceived imbalance of personal power by one party. Whether or not the imbalance "really exists" is something that can’t be determined; if it could be determined, it wouldn’t make a difference. The perception of imbalance is all it takes to render one party incapable of doing business with the other. When this happens we make it explicit, put it on the table, and fix it. Often this means the person "without enough power" will need to bring support to the mediation sessions, and the other will have to agree to the presence of this extra person if the mediation is to continue. Usually the "supporter" is an attorney, therapist, or financial advisor, and his or her presence, almost without exception, helps the mediation. If one person brings support to mediation, the other can too. However, I recommend that we have at least one session with a single supporter and to see how it goes before the decision is made to bring another. Another way of dealing with the power issue is for me to meet with the parties separately for some or all of the mediation sessions. The other fundamental problem is an unwillingness to participate in the process. This is sometimes described as "unavailability for mediation." Obviously, I can’t work with someone who won’t come to my office, and even if he or she will come to the 6 office, without a sincere commitment to the mediation process, there’s not much I can do other than to be available myself, if, over time, there’s a change in attitude toward the problems and the best way to address it. Being "available for mediation" doesn’t mean that the parties are ready, willing and able to make their best effort to resolve every issue at each session. This is almost never the case. With the passage of time the parties will get better and better at dealing with their issues, but there will be times when one or both are emotionally, intellectually, or physically unable to do much of anything. Merely recognizing that: (1) This where things are at the moment; (2) These conditions are almost always transient, that people, have ups and downs, but, in general, they get better with the passage of time after physical separation; (3) Of the divorcing population 95-96% "make it through," "get better," "survive," and/or "grow," so they can settle the case without their family becoming the subject of judicial inquiry. _________________________________ 1 (An example: The problem could be expressed: "How do we reorganize to complete the task of raising our children in the best way possible?" Or it could be expressed: "Who gets the kids?" Which is the better statement depends on the family, but for most the work is going to be easier and the outcome will be better if energy is spent on the first articulation of the problem rather than the second.) 2 "Comfortable" is the best word I can think of to describe the subjective state the parties should be in before the case has reached tentative settlement. It’s intended to convey the idea that haste and a sense of pressure are avoided by every appropriate means. Mediation is not like a game of "killer checkers" where you are stuck with your move as soon as you take you hand off the checker; it’s pretty close to the exact opposite
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Copyright 2003 Brian H. Burke