Sunday, March 6, 2016

Mediation Misconceptions

        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.

        For the most part though mediation is appropriate on a wide spectrum of cases from cases where parties are extremely amicable to case where parties have a high level of conflict. Mediators wear multiple hats- traffic cop, problem solver, good listener, conveyer of information and coach.  The misconceptions may be due to inaccurate portrayal of mediation in the media or it might be the product of our failure as a profession to adequately and accurately explain what we do. As “ADR” becomes seen more as “appropriate” dispute resolution and not “alternative” dispute resolution, this problem will disappear and a fuller and better understanding of mediation will emerge.