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"The breadth of this book is astoundingthey have taken so much of what mediators do and put it all into just this one book." Diane Neumann, diane neumann&associates, divorce mediation services
What is mediation and why is it needed?
Who can become a mediator?
How can you incorporate mediation into your practice? Are there any pitfalls?
The Practitioner’s Guide to Mediation answers all of these critical questions and much more as it guides you through the process of breaking into this lucrative field. Written by the leading experts on the subject and founders of the Erickson Mediation Institute, this practical guidebook will provide you with all the information you’ll need to incorporate mediation into your existing range of services and build a successful practice. Packed with helpful advice and tips, Erickson and McKnight clearly show you how to confidently mediate family, divorce, and workplace disputes. They also take you step-by-step through their client-centered approach so that you can develop new ways of thinking to resolve conflicts that will benefit everyone.
This book is written for professionals who provide help to couples and children in the midst of divorce. The professionals who provide this help include therapists, psychologists, school social workers, family law attorneys, tax accountants, corporate attorneys, juvenile court workers, custody investigators, marriage counselors, clergy, and judges. This book is also for anyone who experiences the devastating impact of divorce on families and wants to do something about it. To benefit from this book, you should have an open mind and a willingness to entertain new ways of thinking.
This book is also written for professionals who want to control the emotional and financial costs of conflict in their workplaces, their organizations, or their lives. The chapter on employment and other applications of the mediation process not only provides a detailed glimpse inside the working mind of a mediator but should also stimulate new thinking inside the mind of the reader. If you are an employee or manager considering mediation to resolve an employment dispute, you will want to choose a mediator who can effectively provide the type of help needed in order to prevent the conflict from becoming destructive. This book will give you the information you need to select the right mediator as well as to select the right mediation process. Finally, if you are considering becoming a mediator, this book is must reading before you choose a training program.
Chapter 1 encourages you to think of mediation not as something new, but rather as a new way of thinking. It provides a blueprint for becoming a mediator and discusses the almost endless opportunities for someone considering mediation as an addition to their existing professional practice or as a stand-alone profession.
Chapter 2 lays out the steps and the conceptual framework for a client-centered model of mediation, followed by a detailed description, in Chapter 3, of what goes on inside the mediation room and of the mediator's role in managing the people and the conflict. Because client-centered mediation is a distinct form of mediation that differs from labor mediation or other types of law-focused approaches to mediation, it is important to understand these differences to benefit from the tremendous power of this model of mediation.
Because divorce mediation was essentially the starting point for the mediation movement in the early 1970s, Chapter 4 takes a closer look at divorce, family, and custody mediation. Divorce mediation confronts one of the most difficult conflicts that exist on earth, the breakdown and ending of the intimate, complex marriage relationship. Understanding the reasons for divorce mediation's emergence, why it caught hold, and why it is such a growing field permits some exciting forecasting about the future of other mediation applications as well as the future of the legal adversarial system.
Chapter 5 describes other applications of client-centered mediation. Walk with the mediator into a workplace conflict mediation, and to a school closing dispute that brings out the entire town to see how the power of a client-centered model of mediation can promote healing and resolution of these problems.
Chapters 6 and 7 explain how to get trained as a mediator and how to build a mediation practice. Both chapters help sort out the many choices faced by the professional who sees the benefit of learning and applying mediation skills. Chapter 8 closes with some dos and don'ts about ethics, accountability and practical pitfalls, and a look at the potential impact of mediation on society in the future.
As you begin to read this book it is important to know how it has been structured. Because it is written by two authors, it is written in the first person plural, we, and possessive, our. We and our refer to both authors as mediation practitioners. It is also written to you, the reader. It addresses you directly, and also speaks about people, couples, spouses, children, and other mediators by referring to them in the third person, either singular, plural, or possessive, or as participant(s) or party (parties). Erickson Mediation Institute is the authors' mediation practice or business and is referred to as the institute.
We believe you will appreciate what follows. We have included as much actual dialogue as is possible from our cases. Although the people discussed are real, the names and details of the cases are changed to avoid identifying our clients, and the events and dialogue described all actually happened. We hope that through the experiences of the people described and through our attempt to define this new way of thinking, you will be encouraged and motivated to embark on the journey toward becoming a mediator.
Mediation is not really new. It is as old as the new testament and perhaps older. The Greek word for mediate means to stand between. People have always known that standing between two people in conflict can be helpful. What is new is that mediation has been rediscovered as a replacement for many of the present methods of addressing adversarial conflict. The mediation method encourages cooperating with and helping your adversary. This new way of thinking is gaining a foothold, not only in conflict resolution theory, but also in business.
Tim McGuire, the editor of the Minneapolis Star Tribune describes why his newspaper decided to cooperate with another newspaper that it perceived as a competitor:
One of the most intriguing books I've read in recent years is New Rules for the New Economy, by the executive Editor of Wired magazine, Kevin Kelly. Kelly pokes holes in scores of traditional business principles in a way that is bound to leave business people who are products of the industrial age scratching their heads. Perhaps the most challenging of Kelly's contentions is that we should embrace our competitors. (McGuire, 1999)
Embracing or helping one's competitors is at the heart of this new way of thinking that is called mediation. Indeed, embracing competitors was at the heart of Reconstruction after the Civil War and it was the principle behind the Marshall Plan after World War II.
Bill Ury (1993) illustrates this concept in his book Getting Past No with the following story:
During the American Civil War, Abraham Lincoln made a speech in which he referred sympathetically to the Southern Rebels. An elderly lady, a staunch Unionist, upbraided him for speaking kindly of his enemies when he ought to be thinking of destroying them. His reply was classic: "Why madam," Lincoln answered, "do I not destroy my enemies when I make them my friends?" (p. 171)
The concept of helping instead of destroying an adversary is what forms the basis of the present increased interest in mediation and the study of cooperation. It also forms the core of this book. Only since the mid-1970s have we begun to study earnestly and experiment with more constructive ways to resolve conflict. By looking closer at mediation and all its forms, we have discovered that when people in conflict participate in a cooperative journey guided by a mediator, they begin to experience a healing and transforming of their relationships. The transforming is an empowering event for most people. The participants will have worked through perceived personal or strategic weaknesses to own a good solution for themselves. This generates authentic personal growth and strength for the participants. As they take this journey, they are changed by their interaction with each other and with the mediator. This change is made possible by what we call new thinking, but it requires shedding some old baggage. Specifically, it requires us to adopt the radical and unpopular notion that nothing works until we accept the fact that we must help our adversary.
Our main goal in this book is to provide a detailed blueprint for how the behavioral science practitioner, the lawyer as well as other professionals, can expand their professional practice by either adding mediation services to an existing practice or by moving into mediation as a full-time career. Therapists, counselors, and lawyers are the most common group of professionals to become mediators. At this time, because there are no regulations limiting the field to only those professions, many successful mediators come from other backgrounds. In fact, accountants who have traditionally given only accounting advice are now becoming trained as mediators in order to provide more comprehensive services when they advise boards or other multiple parties who often experience conflict. Managers find that having mediation training on their resumes enhances their possibilities for promotions and, perhaps, most exciting of all, schools have embraced mediation by formal programs that train children to become peer mediators. It is just as important for professionals who do not wish to become mediators to be knowledgeable about mediation in order to best serve their clients' interests by making competent referrals to skilled mediators. Law schools are teaching their students that the use of mediation will become an integral part of the future practice of law. Practicing lawyers increasingly find that more and more clients are asking them about mediation. Therapists are finding that their counseling skills are a good platform for learning divorce mediation skills and serving a new group of clients. Other professionals, such as accountants and educators, who serve divorcing families are interested in becoming mediators. Even if one never intends to practice as a mediator, understanding and applying the mediation concepts in this book will forever change the thinking of the practicing attorney, therapist, or other professional when serving divorcing families. Finally, for the consumer of legal, therapeutic, or mediation services, this book is written in a manner that does not require advanced degrees to understand. In many ways, traditional academic learning is no guarantee of achieving an understanding about mediation. In some cases it may be a hindrance.
Before considering mediation as part of your practice, it is important to have a clear understanding of not only the process of mediation but also its tremendous potential for changing the way people interact. What really is mediation? Why is it needed? Who can become a mediator? How can you incorporate mediation into your practice? Are there any pitfalls? These are just some of the questions that will be discussed in this book.
This book also sets forth a conceptual framework for client-centered mediation by examining, in detail, the role of the mediator and the skills used by a mediator in the mediation room.
We believe that mediation will continue to be a strong alternative to conventional legal proceedings and the need for competent mediators will continue to grow. Several reasons for this optimism exist.
The public has lost confidence in the integrity of the court system, because litigation is not serving its needs. Not only is there a growing backlash against litigation, but also against the entire lawyer-managed system of conflict resolution. For many people, their first encounter with the legal system is through a divorce struggle or by knowing someone going through divorce. Many come to realize that the litigation system is responsible for breeding much of the ill will and fallout that contaminates postdivorce families and postdivorce functioning. There are many trends that point to a rapid change in attitude on the part of the public. All family courts are reporting a dramatic increase in the number of pro se (unrepresented) litigants. More and more state courts are mandating mediation before clients can enter into a legal adversarial divorce. Family mediators also report an increase in the number of clients who actively seek divorce mediation assistance through yellow-page ads, Internet searches, and referrals from clergy and therapists. Although a certain number of people are ordered into mediation by the family court, a growing number of couples have heard about mediation and seek it on their own. An interesting trend reported by many mediators is that a small but growing number of couples use mediation to strengthen and preserve their marriage relationship particularly when financial or other issues not typically addressed in a therapeutic setting are at the core of the couple's relationship dysfunction. In the future, mediation may serve the ongoing marriage in much the same way therapy and counseling now attempt to strengthen the marriage relationship.
Adding strength to the observation that the public is tiring of litigation and lawyer-managed conflict resolution procedures is the growing use of mediation in workplace, business, and community disputes. Practicing mediators report heightened interest in mediation on the part of human resource executives looking for ways to reduce the time and cost of workplace litigation. Many companies are adding a clause to their employee manuals requiring attempts at mediation before grievance procedures or formal hearing procedures can be commenced. We seem to be entering a period of experimentation with many types of mediation applications. In the far northern town of Grand Rapids, Minnesota, a mediator is present in court every Thursday to mediate harassment cases. In the U.S. Postal System each day, in quiet back rooms of post offices around the country, law suits involving Equal Employment Opportunity Commission claims are being mediated under the Postal Services REDRESS program (Resolve Employment Disputes Reach Equitable Solutions Swiftly) instead of being litigated.
For those few people who are bold enough to become mediators, business is brisk. No longer is it necessary to implore people to try mediation. In fact, mediators who have Web sites report more people searching for mediation services. In our early years, we had to convince people to use mediation. Now, it is more common for people to interview several mediators; because they are already committed to using mediation, they are merely searching for the right one.
Traditional beliefs about using the court system are rapidly changing. In this changing world, there are fewer and fewer true adversaries. We are beginning to see that we are all linked in some way to each other. Although there is still some of the old Wild West mentality of staring the opponent down with a threatening lawsuit, more and more, people and corporations are finding that such tactics are costly and such tactics contaminate the business relationship. (Remember Tim McGuire's words about needing to embrace and cooperate with our adversaries.) Moreover, as we move toward a global economy, the court system in the United States will become increasingly viewed as antiquated and not capable of providing quick answers to the needs of parties. The Internet business philosophy basically is built on trust, and it is fascinating to see how e-commerce is transferring billions of dollars of goods without detailed legal contracts signed in triplicate.
Traditional beliefs about how divorce should occur are also rapidly changing, giving rise to the increased use of divorce and family mediation. Fault (i.e., who caused the marital breakdown) is no longer a factor to consider in most states. In almost all states, there is an increase in the number of couples experimenting with equal time sharing of the children. This trend, advised by professionals and supported by the divorcing public, is an indication that many want an end to the battle mentality of divorce. The traditional divorce, which awarded custody to mothers and made dads visitors to their own children, is no longer the status quo. Instead, couples are sharing their parenting responsibilities equally after the divorce and competition for physical and legal custody has become less important. How each parent can get assistance and support from the other parent is more important than who will have custody. Because both parents usually work full time to survive financially, they realize that they need to cooperate to cover all the emotional, physical, and financial needs of their children.
In high-conflict spousal-abuse situations, the legal adversarial system has failed to address the underlying causes of abuse. The occurrence of spousal abuse seldom results in a termination of parental rights of the abusive spouse. After all the court battles are over, after all of the protective orders have expired, after professionals are no longer in the picture, both parents will still have a visitation order and a relationship with each other through their children. Client-centered divorce mediation does a better job of resolving the high-conflict spousal-abuse cases because it helps the couple build internal controls that address the underlying anger, chemical abuse, or control issues that create the conflict. External court orders do a poor job of addressing these issues. The adversarial system most often increases the level of conflict, further alienating the parents, and thereby harming the children. Client-centered mediation offers the opportunity for parents to learn the elements of cooperative behavior by helping them jointly agree to ground rules about their future conduct to ensure the protection of each. When the ground rules are established by the couple in the safety of the mediation room, these rules are more likely to be followed. Mediation for spousal-abuse couples has proved safe when the necessary protocols are followed, such as continuing a protection order, asking that attorneys be present at some of the mediation sessions, and taking agreed-upon precautions when danger signs begin to surface.
In any high-conflict relationship dispute, client-centered mediation does a better job of addressing the underlying causes of the conflict. The Postal Service's REDRESS program found that "Half of all respondents, including most managers, report the process changed the way they dealt with conflict, and a significant majority (74% of all respondents and 92% of supervisors) report mediation to be better than the traditional EEO process" (Anderson & Bingham, 1997).
Mediation is emerging as a separate and distinct profession. It has not been appropriated by the legal profession as a subspecialty of the practice of law (and, therefore, it is not controlled by the judicial system) and it has not become a subspecialty of social work or psychology. Some universities and colleges are creating new majors and master's degrees in conflict resolution that are not part of any existing department. It will continue to incorporate the best aspects of the fields of behavioral science, law, and, also, just plain common sense. As with any emerging field, the opportunities are greatest for those who possess the foresight to climb aboard early.
There are two groups of people from other professions who clearly would make good mediators: mental health professionals and family law attorneys.
Therapists and other mental health practitioners make good mediators because
Mental health professionals, particularly marriage and family therapists accustomed to working with families, make ideal mediators because of their training and experience in working with people in conflict. When they enter the field of divorce mediation, they find they already possess many of the necessary skills to become divorce mediators. Children of divorced parents who experience adjustment difficulties usually are first seen by child psychologists or clinical social workers. Individual marriage partners may seek counseling for their own stress and find that the problems are rooted in the marriage relationship. Therapists also serve divorcing couples by assisting them in marriage closure and divorce adjustment. Specialists in child therapy evaluate the effects of divorce on children and make recommendations about postdivorce parenting. In these ways, mental health practitioners are already deeply involved in the divorce process of couples, individuals, and children.
The appealing aspect of divorce mediation for counselors, therapists, clinical social workers, or psychologists is that they are already experienced in addressing high conflict and, in general, have acquired skills that enable them to function well in a room filled with intense marital stress. In the past, though, few therapists have offered to help the divorcing couple resolve parenting, property, and support issues created by divorce, no doubt because these issues have always been considered to be solely the province of divorce attorneys. Because the issues of children, housing, money, and resolution of conflict are now being seen more as mental health-related issues than legal issues, they should be addressed by people who are skilled at reducing the conflict rather than by people skilled at using the adversarial rules of engagement. With the advent of divorce mediation, the therapist can now urge the couple to use mediation and can refer the couple to supportive advisory attorneys who represent the husband and wife instead of referring them to aggressive lawyers who manage the battle in the adversarial system.
Many therapists have found that adding mediation training to their therapy practice is a better way to serve the entire divorcing family. They can treat the entire family as their clients, including the children, who are not always present. They have learned that the role of a mediator is very different from the role of a therapist, something that is seldom addressed in clinical training. Although the two roles are complementary, they must clearly differentiate between the two if they plan to offer both. As later chapters spell out, mediation is distinct from the practice of law and distinct from the practice of therapy.
The mental health professional as mediator has a wealth of knowledge and training about family systems, human behavior, and psychological theory to bring to the practice of mediation. At the same time, the mental health professional has much to learn about mediator neutrality, impartiality, and client self-determination in mediation practice, as well as the laws impacting parenting, financial support, and property division. In the short history of the field, mediators with backgrounds in therapy, counseling, and psychology have made up a large segment of the practitioners who work as mediators.
Some therapists have told us months after a mediation training that they have to unlearn many of their therapy techniques in order to master mediation. Although they begin to gain a deeper respect for accepting what the clients believe is best for them, therapists will learn that they can still question a client about those choices and beliefs without giving a cue that, as mediators, they believe the client's choices are unhealthy or detrimental. Mediators do not have to become overly invested in ensuring that the clients make responsible choices for themselves as long as the model of mediation used encourages each spouse to be represented by an attorney. In fact, one of the most liberating things to unlearn is the myth that people cannot be trusted to make good decisions for themselves. When they are provided a safe and cooperative mediation environment in which to make those decisions, they usually are quite able to make informed lasting decisions that meet their needs.
In order for therapists to become divorce mediators, they need to first consider their own feelings and biases about divorce. Therapists must adopt a different way of thinking and learn the power of being neutral even when they may know what is best for the children. If they have practiced as custody evaluators in contested divorces, they might feel a need to advise parents about what is best for their children. Becoming a mediator requires learning the difference between telling someone something they should do and reframing advice as an idea or option for the parents to consider. Learning to operate from the mediator's perspective when you are a therapist is a new exercise in control and mental gymnastics. It is like leaving the perfect gift at the door in hopes it will be discovered and used, and if it isn't, allowing it to go unused.
In divorce mediation, the practitioner directs the process and leads the couple through the steps necessary to reach agreement about parenting, support, and property division. The couple comes to mediation with the goal of getting a divorce. If divorce is counter to your own beliefs, especially when you believe the couple could perhaps survive their differences and stay married, you need to decide if you can help them mediate their divorce.
Moreover, it is not appropriate to ask or consider traditional therapist questions such as assessing their appropriateness for divorce, or their appropriateness to enter mediation. These are decisions to be made by the couple, not the mediator. A mediator's own personal doubts about whether the couple should divorce or whether they should be in mediation are not pertinent. Even in the most violent situations, such as nonreciprocal spousal abuse, mediators must overcome their own concerns about clients' appropriateness for mediation when, after in-depth screening and imposition of safety protocols, the couple chooses to mediate. This is counter to the beliefs of some battered-women's organizations and courts that still insist mediation is absolutely not appropriate for any couple when there has been a history of nonreciprocal abuse.
A therapist learning to become a divorce mediator sometimes questions clients' readiness for divorce. Such a question only gets mediators in trouble. Usually when couples begin a divorce process, one spouse is always more interested in proceeding with the divorce than the other. This difference in readiness is explained more fully in Chapter 3. The following discussion distinguishes between the readiness to divorce and the readiness to mediate. Chapter 3 illustrates that spouse A is the partner, who during the period of the marital breakdown, was the first to consider divorce and did so for quite some time. Then, perhaps after a period of months or years, spouse A makes a personal, private decision to divorce long before letting spouse B know of the decision. This common scenario sets up a situation in which, at the time of divorce, spouse A has had more time to think about and adjust to the decision to divorce. Meanwhile, spouse B may believe that things were getting better because spouse A was emotionally detached, no longer engaged in arguments or fights with spouse B. Spouse B interpreted this as, "Maybe things are getting better in our marriage." Obviously, when these two people enter the mediation consultation, they are in conflict. Spouse A does not understand why spouse B is so angry. Spouse B does not understand why spouse A wants to get a divorce. A therapist as mediator may feel that spouse B is not ready to mediate a divorce because spouse B is so distraught, angry, or deeply hurt. Spouse B may insist that they are not ready to divorce. The problem with this assessment approach is that spouse A is not waiting for spouse B to be emotionally ready for divorce. Spouse A can always have an attorney serve spouse B with litigation papers and neither the attorney nor the process server will ask, "Is the other emotionally ready for this divorce?" Spouse B, although in denial, does actually know about the problems in the marriage, and may even have heard spouse A say he or she is getting a divorce! Therefore, when both husband and wife show up for a divorce mediation consultation, the therapist as mediator needs to assume that spouse B is aware that the divorce is moving forward. Perhaps a more realistic view of the entire problem of readiness for any divorce process is to assume that couples are always more ready to engage in a more humane process such as mediation, rather than in an adversarial process that can be devastating to the family.
As previously noted, the therapist learning to mediate possesses a wealth of knowledge and experience that is consistent with the practice of mediation. They also have developed the important people skills from their experience of interacting with clients professionally. Thus, for mental health professionals entering the field, mediation is really a natural progression in career development. Therapists already understand and know how to assist couples and individuals in resolving their dysfunctional behavior. The therapist as a mediator understands basic skills such as eye contact, clarification, reframing, interested curiosity, respect, and rapport building, to name a few. Add the concept of neutrality, learning information about family finance, budgeting, and net worth, and the therapist has a very good start at becoming an excellent mediator. Going a step further and learning more about mediating the things of the dissolution, such as assets, liabilities, budgets, and support, allows the therapist to build upon skills already possessed.
In summary, a mental health practitioner is ideally suited to become a divorce mediator. However, some traits or typical ways of acting as a therapist are not helpful to the process of becoming a mediator. Therapists must be willing to unlearn the following tendencies:
At the same time, mental health professionals must be willing to learn the following traits or tendencies that are unique to the role of mediator:
Many family law attorneys make good divorce mediators and are quite able to make the transition from advocacy to mediation because:
The lawyer who legally represents a husband or wife in a divorce is familiar with the laws of the state, with how to draft and present a legal case in court, and can generally understand the various types of settlement options that are used to resolve typical divorce questions. However, this skill is only a small piece of the overall divorce puzzle. Most family law attorneys bring other helpful skills to the task of learning divorce mediation. The family law attorney has seen both sides of divorce, from the wife's perspective and from the husband's perspective, often making it easier to learn neutrality. Many lawyers attending mediation training programs have also seen the destructive impact of the adversarial process on families. Lawyers practicing family law seem to be in one of two camps: Either they are caught in the competitive game of winning the fight, believing that strong advocacy is the proper way to resolve divorce disputes; or they recognize the havoc this adversarial process creates for families, particularly children, and they seek mediation as a new profession or as a way to humanize their law practice.
Lawyers who look to mediation as a new profession or as an addition to their legal practice are generally deeply concerned about the negative impact of adversarial divorce on parents and children. Such lawyers will see mediation as a better method of settling marriage dissolution issues and they are usually open to learning client-centered mediation. A few lawyers view mediation only as a new revenue producer. These lawyers will often bypass training or adopt a very authoritative advisory process that evaluates the couple's situation, tells them what the courts are likely to do, then advises them on how they should settle. We call this directive approach a lawyerized model of mediation akin to one lawyer legally representing both parties in a divorce. An even greater problem with this lawyerized model of mediation is that it seldom addresses the underlying conflicts and often does not result in lasting settlements.
Family law attorneys are experienced in developing client budgets and creating support arrangements with minute details of how they will be implemented. They have knowledge about the various ways of valuing the marital estate, dividing the assets and liabilities, and proposing buyouts of spousal maintenance. Because family law attorneys are expected to protect individual clients in divorce and postdivorce issues, they are usually well acquainted with the settlement options available to them. Their expertise serves them well as mediators because they do not have to relearn this information in mediation training. They also can anticipate future problems because they have litigated issues not anticipated by spouses in divorce.
The lawyer most successful with client-centered divorce mediation is often the one who recognizes that there are always two sides to the story; each spouse has his or her own perspective. This lawyer also knows that by listening for areas of mutual interests in the clients' stories, they will find options that create their own mutually beneficial solutions. By assisting husbands and wives to find their own solutions by confronting the underlying conflict, each spouse will create solutions that are fair and equitable. The same lawyer may have an undergraduate degree in one of the behavioral sciences and understands that issues are really more complex than dealing with simple facts and legal truths. Such a lawyer understands clients' deep feelings of guilt, loss, fear, and desire for fairness. Some family lawyers have attended our initial divorce mediation training course and have concluded that it would not be possible to return to the practice of law. Not every lawyer who learns about client-centered divorce mediation has this revelation, but there is usually some transformation the attorney undergoes to become a successful client-centered mediator. The mediation process requires a new and different way of thinking and of practicing law.
The family lawyer also enters the divorce mediation profession understanding concepts of questioning and bargaining. Because lawyers learn how to ask questions in their legal training, they can also understand the power of asking open-ended questions in mediation. Instead of using the legal tactics of positional bargaining, they need to learn to focus on interests as the basis of the negotiation process in mediation. For many who understand the elements of the battle, it is easy to turn 180 degrees from the battlefield and help couples find peaceful settlement.
There are certain traits that a family lawyer needs to unlearn in order to be a good client-centered mediator. For the lawyer entering the divorce mediation field, the most important roadblock to overcome will be the tendency to be directive or to make judgments about each client's behaviors or motivations. The lawyer needs to learn to listen for clients' agreements, not their mistakes or weaknesses; to listen for opportunities for growth, not the shortcomings or misbehaviors to attack; and to see conflict as an opportunity for clients to grow and learn, not to see conflict as negative. The lawyer needs to discard the adversarial philosophy that justice emerges out of the good fight and that winning at the expense of the other creates acceptable solutions. In order to become a client-centered mediator, the lawyer must abandon the notion that the building blocks of settlement are blame and fault leading to winners and losers emerging from the competition of good, zealous advocacy.
In summary, lawyers must unlearn or discard the following tendencies they may have acquired over decades of practicing law:
Lawyers who invest the time and effort in learning to become client-centered mediators will learn the following:
Mediation is a method of resolving conflicts outside of the traditional litigation model of conflict resolution. Most conceptual frameworks of mediation agree that a neutral professional assists parties in narrowing issues, considering options, and choosing solutions to resolve their differences. Beyond this, however, there are distinct differences. The client-centered model originated in the early 1970s as a reaction to the excesses of the legal system. Another model that has more recently emerged from the legal profession is described as a law-focused approach where the mediator is directive and evaluative. This model focuses on the law as the standard by which agreements are made, not client creativity or choice. Being directive means that the mediator directs and controls the agenda, the process, and the conversation. The law-focused mediator has a prescribed method of addressing all of the issues in an evaluative way by measuring the strengths or weaknesses of the case from a legal perspective and advising the clients to use only those options that fit within the scope of the law. Law-focused settlements closely resemble what a court-ordered outcome might be. This approach is practiced almost exclusively by attorneys and is based upon their experience as a predictor of court outcomes. Client-centered mediators object to this as being called mediation. This law-centered approach resembles what is called settlement conferencing, which is a facilitated process used in courts to expedite the settlement of cases. Aspiring mediators need to be aware that they may encounter this approach and be very disappointed that it is not what they understood mediation to be. We do not use this model of mediation because it fails to address and resolve the underlying issues of conflict, and misses the opportunity to create a lasting foundation for agreement.
The following is an example of the difference between a client-centered model and a law-focused model. To better illustrate these two distinctly different models of mediation, here is the couple's explanation of what they want to accomplish in their divorce.
Mary and John are attending their first session in mediation. They tell the mediator that they want to share the parenting of the children. The children will reside in the house with Mary. However, after school each day they will go to John's house until 6:00 P.M. on Mondays and Thursdays, and until 8:00 P.M. on Tuesdays to best accommodate both of their weeknight obligations and the children's activities. They will alternate weekends beginning Friday after school until 6:00 P.M. on Sunday. This way both parents remain involved in their children's lives and have one home-based overnight on weeknights.
On their own Mary and John have decided to share the children's expenses by following a budget of the children's essential financial needs, and each will pay for the needs from the checking account. The checkbook and register will be exchanged with the children, and once a month each will deposit a child support check into the checking account. The amount each pays will be calculated according to a pro rata percentage of their gross incomes. They will meet periodically to review the children's expenses, the budgets, and settle any differences. They will make adjustments as the children's needs change or as the children get older. For any unbudgeted or large-ticket items they first have to agree on the item and the expense before assuming the other will share in the expense.
The client-centered process would unfold as follows:
The mediator begins by asking if Mary has any other thoughts about the plan. Mary says that John often speaks for her without knowing whether she agrees, which really upsets her. Although she believes that the children need an ongoing significant relationship with each of them, she is not sure how the children will react to the schedule. The mediator then asks John what he thinks. John is upset and suggest that Mary was reneging on their agreement. The mediator asks John to say more about this. John says that he always feels on the defensive when discussing the divorce and parenting with Mary, because he knows that she can run circles around him when it comes to knowing what the children need and how to care for them. The mediator asks John if he would talk about Mary's parenting. He says that she is the best mother any child could ever have, and he is scared to death to have to compete with that fact in the divorce. The mediator asks Mary what she thinks of what John has just said. She tearfully responds that she didn't know he felt that way about her as a mother. She states that she always felt that John minimized her role as a mother as being unimportant, and his remarks really made her feel appreciated. She also says that she knows that the children are very important to John, but is afraid he won't know how to take care of them, especially in a warm, understanding way. For John's plan to work, Mary wants to be able to help him with the children, but believes that he would be offended by that. John is blown away by Mary's words. He desperately wants her help, but doesn't know she will be willing to help him. The mediator seems to back away from them while they turn to each other and begin to discuss what they each need to do to make the plan work. After some heartfelt discussion, they agree upon a plan that will begin with a transition period in which they will interact frequently with each other about the children. With the mediator's assistance, they go on to develop a schedule for this transition period, and a half-time schedule to be implemented after the transition. The mediator asks them if they also need a holiday schedule, and they agree. Developing a holiday schedule is difficult because neither wants to think about not being with the children on a holiday. They go on to mediate the financial support arrangements with the mediator offering them information about ways other parents have designed theirs. They then create a method of sharing the children's expenses that will work best for each of them and is fair from each of their perspectives.
In a law-focused process, the laws restrict the scope of the discussions and strictly limit the options to those that meet the minimal criterions provided by law. The law-centered facilitator is very powerful and directs the course of the discussions. This professional also advises about the law. The clients may be represented by their attorneys in mediation, and when that is the case, the attorneys frequently do most of the negotiating for the parties. The goal of a law-focused process is to settle as much as possible while adhering strictly to the law of the particular state.
This concept suggests that conflict is best settled by lawyers acting as facilitators. They usually advise both parties about the best way to settle by predicting what a court might decide. The clients are relatively silent. They can offer information and ask questions, but they take advice from the lawyer/facilitator about the best outcome. For example, the law-focused neutral would respond to Mary and John as follows:
Upon hearing their plan, the mediator explains that what they have actually decided is a primary residence for the children with Mary, which makes Mary the sole physical custodian of the children. John will not have physical custody and legally will not be making the day-to-day decisions about the children's care. John will become the visiting parent. Although John certainly could have the children on scheduled afternoons, this would be a deviation from the normal court-ordered custody arrangement, which gives John visitation with the children every other weekend Friday through Sunday, and Wednesday evenings.
In addition to Mary having sole physical custody of the children, John will be required to pay her child support according to a formula that calculates a percentage of John's income to be paid to Mary every month. The mediator explains that they could of course deviate from the guidelines; however, it would be difficult to justify their plan, because it doesn't have a payment of child support made by the noncustodial parent to the custodial parent. Moreover, this checkbook idea is something the court would not order.
Both Mary and John are confused by this, and say that they understood that in mediation they could be creative in their divorce decisions. The mediator replies that indeed they could; however, their creative ideas would have to conform in some way with the laws of the state. The mediator then suggests that perhaps the mediation would work better for them if they brought their attorneys to the next session.
This law-focused process uses a cookie-cutter or one-size-fits-all approach. Because the neutral attorney basically directs the settlement toward what would most closely resemble a court decision, Mary and John probably would not be able to use their creative parenting plan unless the mediator could justify it within the parameters of the law. Their unique method of meeting the children's financial needs is innovative, but it is not likely to be supported by the law-focused facilitator particularly because that professional believed that Mary needed greater assurance that John would actually pay child support. In fact, the mediator would further advise that the child support payment should be withheld from John's paycheck and paid to Mary through the county's Child Support and Collections program.
The two conceptual frameworks are very different. Yet, each will assist Mary and John in making their divorce decisions outside of court. A neutral attorney can offer these services as an alternative to the adversarial process and save the couple some time and money. The couple might actually appreciate this service as a means of getting things settled quickly with little acrimony. When gathering all of the data about divorce mediation training, you need to reach your own comfort level with the distinctions between these different approaches. Decide which conceptual framework fits your own understanding of what mediation is. In our opinion, the law-focused approach is an ADR (Alternative Dispute Resolution) process, but it is not mediation.
It is possible to combine some of the best, most useful aspects of the fields of behavioral sciences and law and integrate them with a new set of skills in the field of professional mediation. In fact, that is the foundation of client-centered mediation.
The process of becoming a mediator is not easy. The job of teaching peace has always fallen on those who are willing to make sacrifices and who are willing to swim upstream. In some quarters, you will not be welcome. We have inherited an ancient legal decision-making system that is deeply entrenched and based upon an adversarial model. In addition, you will find that humanity has a tendency toward violence and confrontation. Your job is to change that tendency and offer new thinking, cooperation, and peace.
What Is Mediation?
The Client-Centered Mediation Model.
The Mediation Process and the Mediator's Role.
The ABCs of Divorce Mediation.
Mediating Workplace and Other Non-Divorce Disputes.
Building a Mediation Practice.
Ethical Standards and Accountability.
The Future Impact of Mediation Practice.
Suggested Reading List.