Divorce Options: Mediation

What are you divorce options?

Option 2: Mediation

Up next in the divorce options series, is the option of mediation. Mediation is a dispute resolution process which focuses explicitly on negotiation (Lande & Herman, 2004). According to Gaies (2018), spouses meet with a specially trained mediator until an agreement is reached. However, mediators do not have the authority to impose any decision. A mediator is a “neutral third-party” (Lande & Herman, 2004, p. 280) or an impartial professional that is able to provide information, but is unable to provide “advice about the law, finances, or co-parenting” (Gaies, 2018, p. 8). A mediator helps the spouses negotiate without representing either of them (Lande & Herman, 2004). “Mediation is based on the premise of self-determination,” it is the parties who are responsible for making the decisions in their case rather than the professionals they hire or the court (Lande & Herman, 2004, p. 282).

The mediator helps partners come to an agreement; however, mediators are not able to provide guidance about the consequences of the partners’ decisions or advice partners in a way which would lead to a better agreement. According to Bowling & Hoffman (2003), “most codes of ethics for mediators proscribe offering professional advice” (p. 23). The Massachuetts Uniform Rules on Dispute Resolution (as cited by Bowling & Hoffman (2003) states that “a neutral may use his or her knowledge to inform parties’ deliberations, but shall not provide legal advice, counseling, or other professional services in connection with the dispute resolution process” (p. 23). Mediators can educate, but not advise. Mediation can create a safe space for partners to “air their grievances and vent their emotions which may provide people with the experience of “having their day in court” without actually needing to go to court (Bowling & Hoffman, 2003, p. 13).

Bowling & Hoffman (2003), state that “successful mediators are empathetic, nonjudgmental, patient, persuasive, optimistic, trustworthy, intelligent, creative and flexible” (p. 18) and can” help the parties in mediation reach a genuine resolution” to their dispute (p. 14). A skilled mediator can assess obstacles to a resolution dispute and then utilize techniques/interventions to help the parties generate options for settlements, i.e., “providing the partners opportunities to vent emotional reactions to the dispute or encouraging parties to focus on interest rather than positions” (Bowling & Hoffman, 2003, p. 19). According to Bowling & Hoffman (2003), the success of mediation may be connected to the Hawthorne effect: the phenomenon which describes “the changes people make in their behavior when they realize they are being observed” (p. 19).

Mediators can help shift seemingly unproductive discussions that take place during the mediation process into productive ones (Bowling & Hoffman, 2003). According to Bowling & Hoffman (2003), empirical research supports the mediation process as consistently yielding high levels of participant satisfaction. Mediators can refer clients to get additional professional help from lawyers, mental health professionals, appraisers, financial experts, etc., and these professionals “can attend mediation if desired” (Lande & Herman, 2004, p. 282).

Mediation may be a good options if the family does not require a high level of involvement from professionals. If the clients want a neutral professional or “neutral professionals” (co-mediation) “to manage the process,” but do not want or cannot afford lawyers to “take the lead in managing negotiations” mediation is appropriate (Lande & Herman, 2004, p. 285).

Gaies (2018) describes mediation as an “event rather than a longer process” and therefore limits partners opportunities to “consider the decisions and to work through any emotions” (p. 8). Bowling & Hoffman (2003) also site what they call a “negative Hawthorn effect” which sometimes results in mediation when clients seem to negotiate less productively when the third-party mediator is present. It may then depend on the skill and “presence” of the mediator which impacts the likelihood of a successful meditation process in such cases (Bowling & Hoffman, 2003, p. 20-21). In practice, mediation offers the flexibility to satisfy the clients’ procedural needs, however, not all clients find that it does so (Lande & Herman, 2004). Mediation may not be a good option if domestic violence is or has been an issue within the relationship. If parties want lawyers to handle the negotiations, or if the parties want/need support or legal/financial advice.

Written By Caitlin S. Lowry, PhD, LMFT

References

Bowling, W. & Hoffman, D., (2003). Bringing peace into the room. Jossey –Bass. San Francisco, California. (pp.13-49).

Gaies, J. (2018). A clear and easy guide to collaborative divorce. ISBN: 198573818X. (pp. 3-20).

Lande, J., & Herman, G. (2004). Fitting the forum to the family fuss: Choosing mediation, collaborative law, or cooperative law for negotiating divorce cases. Family Court Review, 42(2), 280-291.