SHOULD I MEDIATE?
Many lawyers encourage their clients from the outset to enter into mediation as a means of effecting an early and relatively painless resolution to their matrimonial litigation. At times mediation is introduced as an idea worth pursuing in the middle of the court proceeding. Most separation agreements contain mediation/arbitration clauses under the heading “Dispute Resolution”. Again clients are directed to incorporate this process into their agreement after being told that it is a less expensive, more efficient and in some instances a more fulfilling process than going to court.
Mediation is a negotiation process facilitated by a third-party who is called “the mediator”. Mediation can take place with or without lawyers present. This can be an extremely useful and rewarding experience depending on a number of factors, including the idea that both parties must be willing to engage in mediation and be prepared to accept the idea of compromise.
When mediation first appeared it was largely populated by individuals with a social work/therapeutic background. Participants went through a process called pre-mediation during which the mediator would assess their state of mind and whether they were appropriate candidates for mediation. Often one or both parties were not and the mediation was cancelled. Further, in the early stages the role of the mediator was simply to guide the discussions in the direction of compromise and settlement. A good mediator would discuss the implications of each person’s position and help them examine the consequence of compromise. When tensions escalated or someone ‘fell off the rails’, the mediator would occasionally have a short one on one therapy session to restart the process. All in all it was a successful and rewarding process.
Then something happened that should have been expected but was not. Lawyers, retired judges, retired lawyers and just about anyone else who was looking for extra income decided to hold themselves out as mediators. This created a whole subset of mediators who have no therapeutic capabilities and whose primary goal is often to resolve the legal dilemma while completely ignoring the associated emotional fallout. The result has, in my opinion, been both good and bad. Given that most lawyer/mediators are intelligent and also experienced litigators, this often works quite well and satisfies the clients. As well a large number of family law practitioners understand their clients’ emotional trauma and as mediators they make the effort to appease the angst that the participants are experiencing.
And then there are those who let their over inflated egos drive the mediation. Some are overly opinionated and overly directive and serve only to agitate the clients and alienate one or both of the lawyers. These mediators seem to view themselves in a quasi-judicial role and actually believe that their task includes advancing their own opinions of the individual client’s possibilities of success in a courtroom on each issue being mediated. In other words they are attempting to bully one or both participants into giving up their position and to agree to settle. Surprisingly there are actual advocates of this approach and it has now been given a label – the “Evaluative Approach”. This mediator sees the role of the mediator as the ultimate evaluator of each client’s legal position. This often undermines the role of the lawyer who has given advice to his or her client that is now being completely contradicted by the mediator.
In my view it is not and never will be the mediator’s role to make judicial pronouncements. That is why we often end up in front of a judge or an arbitrator. That is their job and not that of the mediator. The mediator is a facilitator of a potential settlement and the mediator needs to understand his or her job and why they are being hired. They are not there to give the client different legal advice then was given by their own lawyer. They are not hired to argue with the client or argue with their lawyers. They are supposed to be skilled manipulators and that seems to be a talent that many mediators lack. And that is why many people who are unsuccessful in their mediation have refused to return after one session. Don’t allow that to happen to you. Research the process before you agree to it. Research the mediator before you agree to use that person.
Mediation is an incredibly useful tool. Make it work for you.
On another day I will be discussing the merits of agreeing to binding arbitration – something that you should do with great caution and trepidation.
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