Recently, a friend called from out of town and asked me about mediation. He and his wife are getting divorced, and he was having a problem negotiating with her. While they are really not that far apart in their positions, nothing was happening because he and his wife were having difficulty communicating. Since my friend couldn’t be objective, I thought he may not be the right person to start the negotiations. It is almost impossible to negotiate if one party is involved and can’t see the “forest for the trees.” Since they were using a family mediator, I suggested that he speak to the mediator and have him negotiate. My friend’s response was a little perplexing; this mediator wanted the parties to negotiate between themselves, which I found difficult to understand. That brought me to the topic of this article of “what does a family mediator do?”
A mediator is like an ombudsman who negotiates between parties. In order to negotiate fairly and neutrally for both parties, a mediator must understand the parties’ needs. To make that determination, a mediator must have good listening skills, patience, tolerance, flexibility, creativity, and persistence, as well as the ability to handle conflict and be empathetic to the affected parties. While listening to the parties, the mediator must also be very careful not to project his or her opinions or values onto the parties and risk introducing issues that are not the concern of the parties themselves.
Once the mediator has helped the parties narrow the scope of the issues important to them, he or she will often meet privately with one party or the other in order to present the other party’s point of view, This meeting, known as a caucus, is private so that a mediator can challenge one party’s position, without diminishing it in front of the other party. The mediator might challenge the party by pointing out the weaknesses of their position, for example. Though this evaluative method is very useful to bring parties closer to an agreement, it also risks alienating the party. Often, if the mediator voices the other party’s point of view too strongly, the mediator may appear to take sides. This can usually be alleviated in advance; if the mediator includes some explanation of this evaluative role at the beginning of the process, the parties will know that what the mediator does to one, he or she will do to the other equally.
The mediator, as an objective third party, is often able to identify options that the parties might not think of themselves. This creative component of a mediator’s role is the one most mediators enjoy. Warring parties often become so entrenched in their positions that they see agreement only as weakness. The mediator, however, can often craft solutions that can incorporate elements of compromise and gain for each party. Being able to “think out of the box” is, therefore, a critical skill for an effective mediator. The mediator may go back and forth between the parties in an attempt to move them closer to a consensus until a resolution is reached.
If an agreement is reached, the mediator must ensure that it is reduced to writing. That does not mean that the mediator must be the scrivener, however. When parties are represented by attorneys, the attorneys will usually write the agreement with the mediator merely ensuring that it is done. If the parties are unrepresented, then the mediator will usually draft the agreement as well. Once drafted, each party must sign the agreement, which then becomes binding on the parties and enforceable. In family mediation, the agreement is called a Marital Settlement Agreement (MSA) and will include a Parenting Plan if there are children in involved. Once signed, the MSA is presented to the judge in a final hearing (like a trial), in which the judge will incorporate the agreement into an order that can be enforced by the court.
While we are on the topic of what a mediator does, it begs the question: what does a mediator not do? Firstly, a mediator can’t practice law or whatever secondary profession they have while mediating. A mediator must at all times be an unbiased and objective third party whose sole role is to facilitate the mediation process.
The mediator is there to assist the parties in reaching an agreement that they craft together. When the parties are represented, it is easy to let the attorneys answer any legal questions that arise. The harder scenario is when parties are not represented. The mediator can provide information required for the parties to make informed decisions. Even if the mediator is an attorney, however, he or she may not apply that legal information to the specific facts of the parties’ case and provide legal opinions. The only legal advice the lawyer/mediator may give is that the parties have a right to hire a lawyer to assist them with the mediation and the case. Similarly, if the mediator is a psychologist or therapist, and discovers that the clients or their children require counseling during the process, the mediator may suggest that the parties get counseling. Even if the mediator is a counselor, however, the mediator should not do the counseling.
Whether the mediation is a divorce, contract, foreclosure, or any other matter, the mediator’s role is the same. He or she must serve as an unbiased objective third party to assist the parties in resolving their disputes. In order to do so, the mediator must identify and clarify the issues for the parties, evaluate and test the parties’ positions, try to find creative solutions that allow each party to gain and compromise, and ensure that any agreement reached is reduced to writing. Despite whatever additional training a mediator has, the mediator may not serve in any other capacity to the clients. Though still fairly new, mediation has becomes an important tool within our legal system for resolving disputes that saves people time, money, and helps preserve relationships.