Recent Posts in Commencing Mediation Category

DFMS Is Now (Almost) 18 Months Old!

Mediation is a difficult and beautiful dance. People arrive with deeply held and heartfelt concerns, and they will continue to hold these core values no matter what occurs. It is not for the mediator or the other party to try to change these core values, and that wouldn't succeed anyway. Mediators can facilitate cooperative insights that benefit both parties mutually, but they do not impose them. Openness is the parties' joint responsibility and a journey that they must undertake together if the process is to succeed.

People also arrive with settlement expectations, and while these may relate to core values, these are not the same thing and ought not be transposed. Expectations are entirely reasonable, but expectations can make people stuck - and mediation is designed to help couples become "unstuck." Fear of some perceived adverse outcome often underlies these expectations.

While mediation is an opportunity belonging to the participants, and the mediator is present to assist in actualizing dialogues that may lead to conflict resolution, mediators have a responsibility to maintain civility, dignity, and boundaries during the process. Mediation is not "anything goes" or "I should be able to say whatever I feel is important" especially if the other party might feel extremely unsettled by such statements. Themes of blame and shame often underlie such statements, and while these must be recognized they cannot be used as cudgels. It is the mediator's goal to assist equanimity.

I attempt to make this clear in our Orientation Session.  For instance, the  Mediation Agreement I ask you to sign contains the following language:

"The mediator will attempt to resolve any outstanding disputes among the parties as long as both parties make a good-faith effort to reach an agreement to both parties. Parties must be willing and able to participate in the process. The mediation agreement requires compromise, and the parties agree to attempt to be flexible and open to new possibilities for a resolution for their disputes. If the mediator, in his or her professional judgment, concludes that agreement is not possible or that continuation of the mediation process would harm or prejudice any of the participants, the mediation shall withdraw and the mediation conclude."

"Harm or prejudice" includes speech, conduct, behavior, threats of litigation, power-plays, or an insistence that the mediation process only validate one party's core beliefs or agendas where one or both parties are unwilling or unable to permit the other to have a different view. Different views are discussed and even to be encouraged, but that is not the same thing as saying "you must accept my views or else." I find that if people hang in with the process (one that they can always leave later since litigation remains available as a final resort), an unspoken attitude of "or else" may soften and dissipate as more information comes to light. The actual divorce or domestic partnership settlement usually ends of looking and feeling different that what was expected or feared.

Mediation unfolds in real time. It requires skill to manage the mediation exchange between the parties, but artistry or the passion of any mediator towards resolution won't guarantee that mediation between some conflicted spouses will succeed. At DFMS, we believe that our responsibility includes anticipating and reframing what is said in the mediation room. We may sometimes inquire as to what point is intended to be expressed. This is not to be disrespectful, but instead to protect the integrity and safety of the process itself, for each party.

Mediation disputants have to be willing to permit and even help the mediator to help them, understanding that the mediator provides no magic wand and relies upon the parties' own desire for resolution. Without a joint and separate commitment to the goals of mediation, when core values, expectations and fear collide with resolution possibilities the mediation may fail. We cannot give you guarantees. We do offer unconditional commitment to you and your family, nonetheless.

The dialogue between the parties must be one that they are both comfortable in engaging in. This is because mediation is a voluntary process.  Mediation cannot occur or continue without the other's consent. It certainly doesn't force agreement.

In contrast litigation allows either party to say whatever they wish to say, at least in declaration form if not when the process is occurring in open court and Judges are sustaining objections. Mediation requires more, and patience. This is because although in litigation while one side might have a say limited by Evidence Code rules of relevancy, in mediation there are two sides that must be supported at the same instant - equally if the process is to have integrity for both. Otherwise it becomes argument. 

There are times in mediation when one or both parties can't say what they might want to say, and we honor your frustration if this occurs. But mediation is not a platform for either party to launch into their unresolved sense of the relationship difficulties - that discussion is what brings you to us, and it probably hasn't worked thus far. Mediation is not therapy. The mediator's role is not to debate questions or issues with either party, but to try to provide the best environment for positive and respectful dialogue and problem solving, as well as legal expertise about family law issues. Some parties are more appropriately placed with litigating attorneys who can serve as their warriors, or in representing themselves, if that is their desire. 

Adversary litigation is not our wish for you, but sometimes it is the only open course. Mediation is not for every one.

The question of mediators talking to one party in the absence of the other can come up in a variety of contexts. This Blog discusses initial contacts from one party, often when they are simply seeking to learn about our services or other general information. We hope that this website can itself answer as many of your questions as possible, without the need for any direct contact outside of the mediation rooms between participants and mediators and before the Orientation or Initial Mediation Sessions. We are eager to talk to you both whenever we are all together!

At DFMS our mediators attempt to avoid speaking to either party directly outside the presence of the other. This includes what we call our "Intake Process." The only exceptions generally involve scheduling an Orientation Meeting, or when a client calls who happens to catch us answering a phone. Instead we attempt to filter your initial calls through our non-mediator resolution assistants.

If we do wind up speaking with you, please understand that we will decline to discuss your case, your position, the facts, your expectations, the other party, or anything that would tend to enlist us outside our positions of neutrality. We are not being rude.

I have been asked 'well, since you aren't deciding our cases or acting like a judge, what is wrong to talking to you outside the presence of the other party?' My answer is usually something lilke this: "If Jane was wanting to have this conversation with me, and asked I not tell you, Joe, about it or insisted that it didn't matter what we discussed, would the mediation process feel safe for you?" 

There are two aspects to this dilemma: (1) it is essential that your mediator actually be neutral and unbiased in order to protect the integrity of the process, and even seemingly innoncent conversations tend to create an unconscious bond between participants and (2) it is equally critical that there be no appearance of bias, meaning that certain boundaries must go into effect from the first communication so that both sides are convinced that the process is fair. 

However, this is not to say that you and the other mediators at DFMS, along with your spouse or partner, can't jointly decide to a different arrangement once the mediation process is underway if everybody - including your mediators - agree. However, this will be rare.