I have learned that, no matter what thorny issues come up in the middle of a divorce mediation, if the parties are talking, then my best course of action is generally to sit back, listen and stay focused on guiding the parties through the issues. Although no one divorce is exactly like another, there are certain situations and quandaries that the divorce mediator may eventually encounter or reflect on. Below are some common examples.
‘Can’t you just tell us what to do?’
A mediator can help parties brainstorm options when they get stuck, or can provide them with legal information or outside resources to help them decide what to do. What gets tricky is when the parties “want” the mediator to weigh in on what they should do. It can be very seductive to think that you, the mediator, know the answer. In truth, the reality is that the mediator doesn’t know the whole story of what is going on with either party, which is one of the reasons it is so important to keep our opinions out of the mix, not to mention that giving legal advice is not the mediator’s role anyway. Nonetheless, the distinction between legal information and legal advice can sometimes seem indistinct.
When people decide to mediate their divorce, they are expecting their mediator to lead them through the process. They need to know a variety of things about their divorce process, e.g., what needs to be in the agreement, what color paper the forms have to be on, how long it will take, and so on. These are, of course, all things about which mediators can inform the parties. However, even if you are clear with the parties about what you can and cannot do as their mediator, there are still some areas that are “gray” instead of black or white.
As noted above, when some parties get stuck, they may ask the mediator to give them advice or tell them what to do. In such a case, a mediator might try to help the parties move forward by saying, “I’ve seen some people in your situation do X, whereas some people have opted for Y or Z,” without letting on which choice the mediator thinks is best. This type of brainstorming is sometimes used in an attempt to help the parties generate options. However, if not carefully executed, this type of brainstorming could leave the parties feeling as though the mediator has given them legal advice, especially if one option appears to be emphasized over another. In such situations, it is important to stay mindful of how you present factual and legal information to the parties so that you clearly remain neutral. At that point, the parties can obtain legal advice about the options they are considering from their respective counsel.
What type of case is appropriate for mediation?
Many experienced divorce mediators draw on their legal knowledge and trial experience (if they have this experience) to help inform their mediation practice. Of course, we also rely on our intuition and gut responses. For example, if I were to receive a call from someone inquiring about mediation and the caller told me that he or she wanted to pursue mediation because he or she did not want to “rock the boat” or “cause the other party to get mad,” I would likely wonder if this case would be appropriate for mediation, depending on what else was said and/or the overall context of the conversation. For this reason, I think it is always important to screen for domestic violence when doing any mediation intake. It is amazing what you can learn if you simply ask. I am not going to say that that mediation is absolutely out of the question if a relationship involves domestic violence, but there are many advocates who would strongly disagree with using it as a dispute resolution process, due to the inherent power imbalance between the parties. In the event you decide to go forward with a mediation in such a case, you will need to think through how you will do so in a way that will protect everyone’s safety.
Is mediation appropriate only for low-conflict divorces?
I’ve heard some divorce colleagues joke that mediation involves people sitting around singing “Kumbaya.” When I hear this, I think back to what an experienced North Andover litigator, collaborative attorney and mediator, Sean O’Leary, said at a recent peer mediation meeting: “It is much harder to settle a case than it is to litigate.” I couldn’t agree more. It takes an abundance of empathy and patience to help parties deal with their emotions and sort through their finances and fears so that you can help them resolve their divorce. I realize that sometimes a party has no other option but to litigate, and that some cases must be resolved by a judge. However, for those parties that have the choice, I frequently remind them, “Litigation is a form of dispute resolution; it is just the least effective.”
In sum, mediation can accommodate high-conflict cases, parties who are hurt and angry or who have endured trauma or betrayal. Many divorce mediators know of the amazing work of Bill Eddy to attest to the effectiveness of mediation in high-conflict cases. Mediation works best with participants who want to retain control over the process and who want to resolve their dispute in a way that makes sense for the parties and their family.
What if one of the parties is not being transparent?
In some ways, this scenario is similar to the person who wants to try mediation because she or he doesn’t want to “rock the boat.” For example, over the years, I have occasionally heard some folks say that they don’t need to exchange financial information, because they “trust each other” and/or they “want to stay friends.” While this is certainly heartwarming, the parties still need to exchange financial information. But how can mediation help these parties? As part of the mediation process, the mediator explains that the court is going to require the parties to submit financial statements to the court and to each other. If the parties have respective counsel, the attorneys are going to want to see this information as well. Exchanging financial information in a mediation context is probably the least stressful way to do so. Lastly, the parties need to have complete financial transparency in order to make sure that the court will approve their agreement.
As divorce mediators, we try to balance our roles as neutrals while guiding people through the emotional and often financial turmoil of divorce. By sharing our thoughts and experiences with fellow colleagues, we all learn and grow. For me, coming back to the basics, whether in mediation or in life generally, is always grounding. I hope that some of these vignettes resonate with you or cause you to consider your own experiences with divorce mediation in a useful way.
Cynthia Runge is a divorce mediator, family and collaborative attorney. She is a vice president of the Massachusetts Council for Family Mediation, a member of the Dispute Resolution Section of the MBA and a member of the Massachusetts Collaborative Law Council.