Each of us brings his or her own perspective and background to the divorce mediation process, and that perspective and background dictate how we think mediation should work. Although the research on whether mediation works doesn’t offer a great deal of guidance about which styles of mediation are most effective, do you think for a moment that stops me from having a strong opinion? By now you know better . . .
Here are the styles of mediation that I’ve observed in my practice. They tend to break down more or less along the lines of what mediators call their “profession of origin.”
There really aren’t that many accountants doing divorce mediation to my knowledge. The ones that are doing it tend to concentrate on the area in which they offer the most strength — dealing with the financial andtax issues. Because most couples going through divorce do most of their arguing about money, this is neither dangerous nor inappropriate.
Many of the best divorce mediators I know began their work as therapists. They can be sensitive, compassionate, and results-oriented. Some, but by no means all, therapists find it difficult to break out of their counseling discipline. They lapse into therapy with their mediation clients. This doesn’t necessarily mean they try to patch up the marriage, but it may mean they wander into lengthy discussions with clients in mediation about their feelings and about how they got to this point.
I’ve seen this approach modeled by some other mediators, and it just seems wrong to me. When you’re going through divorce, you need to resolve a finite number of issues and move on with your life. I think mediation should focus only on those issues. I’m a big advocate of counseling, but I think that’s a separate undertaking, under a separate contract.
That having been said, some of the best mediators I know are former therapists. I think the best way to tell the difference between good mediators and frustrated therapists is to be sensitive to the issue as you and your spouse talk to various mediators.
Christian fundamentalists who engage in divorce mediation tend to use it as a entree — some would say excuse — for working to save the marriage. They see the saving of the marriage as the overriding goal of everything they do. Even though they may eventually preside reluctantly over the negotiations about how divorce will occur, they continue to explore whether the marriage can be saved.
I think most of these men and women are well-motivated, and when they are ever so clear about their goals I think they may be helpful for some couples. I think there are two problems, however, with this approach to divorce mediation. First, by focusing on saving the marriage, these men and women may not provide the best service to couples in their divorce. That is, they may miss important financial or tax issues that people going through divorce need to think about.
Second, when a mediator works to save the marriage, he or she instantly begins taking sides, jumping in on the side of the left and against the leaver. This is one of several reasons why I don’t work to save marriages.
Just a note here to clarify. Please do not assume that every mediator who markets himself or herself as a Christian will be working to save your marriage. Many mediators who are committed to get the two of you through your divorce with a minimum of pain, conflict, and expense may be professed Christians and may do their work out of a deep sense of faith. It’s probably sufficient to ask a simple question when you interview the mediator, “Would you be working to save our marriage or to help us get divorced?”
Lawyers tend to use mediation as another form of a settlement conference, because that’s a format they understand. They tend to want to put the husband and his lawyer in one room, and the wife and her lawyer in the other room. Then they want the mediator to shuttle back and forth between the caucus rooms.
I’ve used caucus style mediation occasionally, and I will continue to use it when it’s absolutely required. Unless there’s domestic violence present, it almost never is.
I believe caucus-style mediation, at least in the context of divorce, makes both parties unnecessarily positional, takes too long, costs too much, steals power from the parties, and is unnecessarily abusive of clients. I feel so strongly about the problems it causes that I’ve included a separate page addressing them.
My approach to mediation is in the mainstream of divorce mediation, from what I think of as a “pure” perspective, or what Laury Adams and I call “client-empowered mediation.” That is, I accept that divorce is going to occur and that the husband and the wife are responsible for deciding how. I’ve included a copy of my Agreement to Mediate for reference. I work almost exclusively in joint, open sessions — that is, with the husband, the wife, and the mediator all in the same room. I do not work to save marriages.
I allow the parties to decide whether to hire attorneys to advise them during mediation. They are welcome to bring their attorneys to mediation sessions with them, but most of them elect not to. I look to the husband and the wife, not their attorneys, to articulate what they need and want to get on with their lives.
I allow a minimal amount of “digging” about interpersonal issues from the past before I step in and insist that mediation is about the present and the future. Interpersonal relationship issues are relevant only insofar as they affect the present and the future. I am task-focused, meaning I concentrate on the finite number of issues that must be resolved for the divorce to be completed. If a discussion doesn’t relate to one of those issues, I point that out and encourage the couple to move on.
I encourage my clients to view everything as “written in sand” until they reach full agreement — that nothing is agreed until everything is agreed. I view mediation as strictly voluntary. Mediation continues only for so long as all three of us want it to. As the mediator, I have to have a good reason to withdraw, although I don’t have to share it with my clients. Either of my clients is free to withdraw at any time for a good reason, a bad reason, or no reason at all.
Strictly speaking, I am not working to get the parties to agree, because once I do, I am no longer neutral. Instead, I am working to make sure both spouses have full access to the information they need and that they are communicating clearly with each other. If they choose to reach agreement, that is their decision.
I don’t believe in retainers, and I never ask for one. I charge $200 per hour, measured in tenths of an hour, and I expect payment at the end of each session for the time spent in that session. I take cash, checks, Visa, and Mastercard.
My shortest mediations have taken 45 minutes apiece, but that’s rare. My longest mediation took 15 hours, but that’s even more rare. I generally encourage couples who have the “normal” complement of a house, retirement plans, cars, and children — and the “normal” amount of conflict — to plan on somewhere around four to six hours in mediation. I generally encourage sessions of three hours or less. Barring a pressing need to finish in one day (for example, a court deadline or travel constraints), I encourage couples not to continue in a session for more than three hours or so, because I think it becomes coercive after that.
When couples finish mediating with me, they will need to have an attorney prepare the forms they will file with the court. The cost for this varies, of course, but it need not cost more than about $350 plus the filing fee (which runs between $160 and $200 depending on the county).