I have often found it curious that what I see as the two
biggest misconceptions about mediation are completely contradictory. I will first preface what follows by stating
that this is not based on a qualitative or quantitative analysis of general public
perceptions of mediation. Rather, this is based on my own experience with clients
I have seen and spoken to over the last 20+ years of doing mediation.
Misconception #1: Mediation
only works if you agree.
This one has puzzled me.
In my initial consultation with prospective clients I often have heard
people ask me if I thought mediation worked if they did not agree. I resist my temptation to be smart alecky and
say Duh!?. But, in hindsight maybe it is
not such an unreasonable question and may be more a product of the mediation
profession’s failure to really properly explain how mediation works. In fact,
many of my mediation clients are quite amicable and when I ask them why they
are choosing mediation they say it is because they want to remain amicable. But remaining amicable is not synonymous with
agreeing on everything. I do
occasionally have clients that agree on everything and just need help getting
through the process. Mediation is
appropriate for them. They are on one
side of the continuum. That is, in those
cases the role of the mediator is essentially to help them get from point A
(married) to point B (divorced). Notwithstanding
their professed agreement on all issues, the role of the mediator is still to
make sure that they have all the information they need to make an informed
decision. I often tell people who come
in and say they have everything worked out that it is still my job as mediator
to make sure that their agreement is not based on some misunderstanding or
misperception of the law or facts.
People get this and are appreciative.
I may not need to act as traffic cop or translator ( to help them hear
each other) but I do play an important role. That is, I am helping the parties finalize
their divorce inexpensively process and with the comfort and confidence that a
professional has helped them through the process and they have covered all the
bases.
So is there
a place for mediation in cases where people agree? Absolutely.
First of all, they may think they agree on everything but you may point
out to them issues they did not think to discuss. Tax issues are a good example. They may have
decided to not transfer retirement accounts because they did not know that
retirements can be transferred in a divorce without tax consequences. Or,
they may not have realized that in Massachusetts, former spouses can stay on
their former spouses health insurance at no additional cost (with some
exceptions). In other words, in these
cases, as a mediator one of your roles is to provide the couple with legal
information that is critical to their case.
This is a valuable role. The alternative is hiring two lawyers, which
will inevitably be more expensive. Or, they can have a DIY divorce and risk
missing something critical.
Misconception #2: Mediation
does not work if parties disagree.
This puzzles me as much as the first misconception. If this
is true, then what is appropriate for mediation? I think the source of this misconception is
the notion that you have to be amicable to mediate. While having the goal of an
amicable mediation is laudable, it is certainly not essential to a successful
mediation. Mediation is particularly
appropriate for people who do not see eye to eye. The alternative is expensive
and protracted litigation and the result of such litigation, particularly if
children are involved, is devastating and long lasting. Although working with amicable couples still
takes training and expertise, much of the
training for mediators revolves around working with families in conflict. Mediators’
training includes learning tools such as
reframing, active listening, mirroring and modeling to help parties get
unstuck. Watching a skilled mediator help
a high conflict couple reach an agreement is a thing of beauty. This is particularly so when the agreement is
multi-layered and addresses emotional as well as financial issues.
So, is mediation appropriate when there is conflict?
Absolutely. Is mediation appropriate
when the couple agrees on everything? Again, absolutely. Mediation is appropriate
on a continuum which includes on one end, amicable couples who agree on
everything but simply need help with the process, to couples who are high
conflict and cannot talk to each other except in the mediator’s office.
Several cautions are in order here. First, if you yourself tend to be a
conflict-avoidant person, be alert to the following tendency. When a couple comes in and says we have
agreed on everything, the tendency of the conflict-averse mediator is to think
to himself, “Great, this will be easy and as a bonus, no conflict!” In fact, in these sorts of cases we mediators
need to remain vigilant about our role of understanding how the couple has
arrived at the agreement and are they operating with full and accurate
information.
Secondly, there may be cases that are simply not appropriate
for mediation. For instance cases where
there is ongoing domestic violence or where one party has a mental illness that
is severe enough to make them not competent to properly participate effectively.
You as a mediator may be “hungry” for
business and it may be hard to turn away a potential client but there area
cases when in fact that would be the prudent and appropriate thing to do.
