Melanie Reichert: Mediation essentially is the most common form of what we call alternative dispute resolution or ADR. It’s what parties can explore if they want to attempt to resolve their differences without the very costly process – both emotionally and financially – of litigation. Mediation can look a few different ways depending on your jurisdiction and, quite frankly, on your family. You may engage in what we call a Pro Se or parties-only mediation, where it’s just the two spouses and a mediator. The mediator is neutral and can’t give legal advice to either party; instead, they facilitate discussion between the parties and help them figure out a resolution without needing a judge. Sometimes, we can do what’s called a facilitative mediation, which is the two spouses, their respective lawyers, and a mediator working primarily in the same room, talking through all the issues. Sometimes the party is speaking, sometimes the lawyer is speaking, but everyone is working towards that final resolution by agreement.
There’s also shuttle mediation, which features each person and their respective counsel in a separate room. The mediator goes back and forth between the rooms exchanging offers until reaching that global meeting of the minds and a full agreement. The ground rules vary from state to state and jurisdiction to jurisdiction. For example, in my jurisdiction, most mediators will have undergone a 40-hour training to be able to mediate cases in the domestic relations arena. Most of our domestic relations mediators are lawyers, but there are also mental health professionals who mediate family law cases here in Indiana.
Generally, there are some common rules across jurisdictional lines. Typically, the mediation process is confidential – meaning the mediator cannot be called to testify or disclose what people were willing to do or the terms for which they were willing to settle in mediation. The only exceptions to that confidentiality may be for reporting abuse or neglect if something arose during mediation to cause the mediator concern. Once there is a signed agreement, that agreement is binding on the parties. Again, rules can vary from jurisdiction to jurisdiction, but those are two that are fairly common across the country.
Stephanie Williams: I want to add that in California, there’s no minimum training requirement. You want to look at what your mediator’s training is when you’re thinking about divorce mediation. I myself did a 40-hour intensive mediation training. I also do training from time to time just to keep my skills sharp because I want to be able to give my best efforts to the clients that I’m working with. The other thing is that the one ground rule for mediation in California is the rule of confidentiality and that is that everything that happens in mediation is confidential unless the parties agree to waive confidentiality and there is one exception.
As with every rule, there is an exception: the financial disclosures that parties have to complete as part of the divorce process. Those financial disclosures are not confidential, but what confidentiality means in terms of the parties who are going through it is that if the mediation process falls apart so that it’s not working for one or both of the parties, then what happened in the mediation cannot be used in the courtroom. That’s an important protection because it helps people be candid during the process, to be honest and transparent, knowing that if the mediation breaks down what they talked about will not be held against them. But once we get to an agreement – either many small agreements or the full marital settlement agreement – once they’re signed by the parties and filed with the court, those documents are no longer confidential. The parties are advised of that and know it’s part of the process.
Stephanie: When I’m acting as the mediator, I’m neutral. I’m not representing or advocating for either spouse or partner. I am holding space for them to be able to communicate with each other in an efficient and effective manner. I maintain my neutrality throughout, and my goal is to use my communication skills to help them up their communication game with each other. Because typically when a marriage is breaking down, communications have broken down. That’s just one of the things that happen as a marriage falls apart.
People need help relearning how to communicate effectively with each other; part of my role as the mediator is to help communications become productive and effective. In my process, I try to make sure that I’m explaining the law and the pros and cons of all of the decisions that the parties are faced with so that they can make informed decisions. I educate them on the consequences of the decisions they’re making, which are very serious and permanent. I talk them through the pros and cons; that’s not advocacy for either of them, it’s education, and that’s my role as an educator and a facilitator.
John Gilligan: Stephanie and Melanie gave a very good dissertation on the mediation procedure. I’d add that you have to wear two hats: you have to make the parties believe that you’re on their side and they can’t feel ganged up upon; and you have to maintain your neutrality while letting the parties know that you’re going to be with them through this. You’re going to try to get them on with their lives and they have to think that they’re getting some kind of a good deal out of this. Although very few people leave a mediation room happy, at least they know that all of their concerns were aired and that they got the best possible deal that they could in this particular marriage. It’s like having two different personalities: you have to be one way to one party and one way to the other party.
John: Yes. We have a code section called CCP section 664.6, which says that any agreements that are signed in mediation are binding and not only binding but can be incorporated into a judgment. If for example, later on, we prepare a judgment and one of the parties doesn’t want to sign the judgment, we can have the party that wants to enforce that agreement go to court and ask that that judgment be entered pursuant to the terms of their mediation agreement – even though the other party now disagrees
Melanie: In Indiana case law, it’s actually a benefit of mediation as opposed to just more traditional negotiation between two lawyers. For example, two lawyers are working with their respective clients, exchanging drafts or sending emails back and forth. They believe they’ve negotiated a full agreement with the clients’ assent, but when that final agreement is circulated, one party is refusing to sign. Because that particular document came about through negotiation, it’s non-binding on the parties in Indiana. There’s no motion that could be filed to compel the person now refusing to sign to enter the agreement. But if you’re participating in mediation, the case law in Indiana says that once all four signatures (or however many parties may be involved) are on that mediated agreement, even before it’s filed and approved by the court, it’s binding on the parties and nobody can call their lawyer when they’ve left the mediation with that 11th-hour regret and ask them to undo what’s been done. It is binding at that point.
Melanie: I could probably talk for 20 minutes about the benefits of mediating a case as opposed to litigating. But I’ll try to summarize it by saying that we’re litigators by nature. We’re all seasoned litigators on the panel and that’s how we got here today. When I litigate, I have a lot of fun, and I make a lot of money. It’s a great time for me. However, it’s horrible for the parties. It’s extremely costly and the stress and the damage that is done is irreparable. That’s especially true in family law litigation involving children because in litigation, you’re forced to go to court and say the most terrible things you could possibly say about your co-parent in order to win. Then the judge enters an order, and we all go away.
The lawyers and the judge go away, and these two poor parents are left in the wake of that damage trying to rear their children in some sort of productive way. In mediation, that entire process is avoided and as John mentioned, nobody typically leaves the mediation happy, but they can mediate and agree and take issues one by one, figure out solutions that are important and relevant for their specific family rather than trying to be that round peg being shoved into a square hole of the court system. Mediation is especially beneficial in cases where there’s a child with special needs – educational, emotional, physical. Mediation allows people to be creative, to go beyond the law, and carve out a parenting plan that works for them.
Mediation is also beneficial in cases where there are no children, where the issues are financial, because again, those families may have unique features that need to be recognized. By mediating and working together to find an agreement, you can address situations where maybe one party has a high income but not a lot of cash or liquidity. You can be very creative in how those assets are going to be reallocated and how spouses are going to be able to move forward with some sense of security and peace.
Stephanie: I think that mediation is a wonderful opportunity for couples to be able to craft an agreement that works for them, their particular circumstances, and their family. Melanie is absolutely right that when you go to court and you’re litigating divorce issues, the remedies and the tools that your judge has available are somewhat limited. They are always, always circumscribed by the amount of time that the court can spend with a particular couple or family. In mediation, you have the opportunity and freedom to craft an agreement in a time setting that works for you based on your schedules: an agreement that both parties can buy into that’s going to be good for them and their children.
In addition to being able to make the process work for you and your family, you also are able to do things that a judge could never do. You can go beyond the law. You’re not circumscribed into what the law requires in terms of, in California, a 50/50 division. You can divide the property in a way that works for you. You can make support work for both spouses, and custody can be tailored to the needs of the children. What I love about that is that usually, you come out of mediation with an agreement that – because both parties have bought into it – has certain robustness, a certain strength that you don’t often get when a judge from on high, from on the bench, is looking down at you and trying to come up with a solution for a family that he or she may know little to nothing about.
When the parties have created their own agreement, then those agreements are durable, and that is a huge benefit because you don’t have to go back to court every six or 12 months to relitigate, to fight over the issues. As a result of that, the stress level in a mediated divorce is monumentally lower than when you’re going through litigation. It’s just immeasurably better for the parties. As a result of them being in a better state of mind, it’s better for their children. When parents are through a divorce, they may think that they’re hiding the stress and distress from their children, but children are little sponges, and they pick up on everything. When their parents are stressed, they certainly pick up on it, and if their parents are less stressed because they have some control and power over the process, then the children are going to be less stressed – and that’s better for the family as a whole.
Stephanie: Power imbalances are a tough issue even for the best of mediators, but you need to get your best tools out of your toolbox to help in a power imbalance situation. I try to circle back to the more passive party, and sometimes, I have to solicit and elicit more information from them so that they’re being heard. I use a process I call “looping” where I repeat to each party what they’ve just said to make sure that I’m understanding them correctly. Often, that’ll bring out a quiet party or a passive party to make sure that they’re explaining themselves clearly and that they’ve been heard.
As a mediator, you are sometimes playing a bit of a referee role in making sure that both parties are speaking and are being heard. Every couple is unique, and it’s important to address power imbalances because the last thing you or either party wants is to have regrets. If you as the mediator have not elicited the opinions and the wants of the passive or low power party, that party will have regrets coming out of the mediation, and then the parties end up in litigation. That’s not good for the more powerful party either, because essentially that means the mediation was unsuccessful in its primary task – which was to resolve the issues. We have to put our best tools to work to help empower imbalance situations.
John: I take a very active role in my mediations. Some mediators are docile and sit back and let the parties try to negotiate and work out their own agreement. I am not like that. I operate under shuttle diplomacy. I put one party and their lawyer in one room and the other party and their lawyer in the other room and I go back and forth. And yes, we have some people who are power-hungry. Sometimes it’s the wife, but usually, it’s the husband, and I try to make that husband think that he is in control: he has the power, and he is running the process, although secretly, he’s not. When I go back to the less powerful party, I tell them “Don’t worry, I’ve got this guy under control. No way he’s going to railroad me. I know the law. I know that you’re going to be heard.”
You must listen to the unpowerful person, which is usually the woman. She has basically gone along with everything that the powerful party has wanted, and this is the perfect scenario where she can finally be heard as to what she’s been going through her entire marriage. You need to listen to her. Looping is an excellent way to just repeat back exactly what she said so she knows that you’ve heard her. Then I say, “Don’t worry, I’m going to go back in that other room and I’m going to tear him a new you know what.” That puts them at ease and also controls the situation – because as a mediator, if you lose control, just like if you lose neutrality, you’re not going to be very effective.
Melanie: No. There’s a very subtle but important distinction to be made. Here in the Midwest, there is a large push to raise awareness – not only for power imbalances but specifically for domestic violence. That brings in a unique element that we as mediators need to be aware of. You can mediate cases in which there’s been a history of domestic violence, but we need to understand and receive the proper training to know the difference between a power imbalance where one spouse is just having some difficulty expressing themselves and those situations where a spouse truly has been victimized throughout the marriage.
John: I have taken the worst domestic violence cases and successfully mediated them. Every case can be mediated as long as you control the situation and you are prepared. You make sure that you know the personalities you’re dealing with and that you get to the issues at hand. So yes, every issue can be resolved through mediation.
John: If there’s a business involved, or if there’s a cash flow situation, you might have to adjourn mediation and say, “Listen, we need some input from the accountant.” Sometimes, these parties are just not ready to settle yet. Their state of mind is such that they just haven’t gotten over the trauma of the divorce and they’re just not ready to put their handwriting on a piece of paper to resolve anything. In those kinds of situations, I might adjourn it for a couple of months, let things calm down, maybe refer them to a therapist, a mental health professional.
Maybe their kids are way too involved in the divorce. Maybe they need to be talked to, maybe we need attorneys for the kids, or maybe a mental health professional to talk to the kids. The beauty of mediation is you’re not subject to the court’s calendar.
When you go into court, you could be number nine on a case calendar that has 40 matters, and you might be heard at 3:30 in the afternoon and nothing has been accomplished all day long. The beauty of mediation is you can schedule it whenever you want – and if it’s nine o’clock at the office, you’re going to start at nine o’clock in my office. A good mediator knows that if there are impediments to getting the matter resolved, there are other avenues t you can explore and utilize to get those issues resolved and then come back and continue with the proceedings.
There are effective ways of getting the mediation done, no matter what the issues are, even if they’re not ready right for a decision at the first meeting.
Melanie: I wouldn’t say there are downsides to the process. There are pitfalls or potential pitfalls that mediators need to be aware of, that parties who participate in mediation need to be aware of. We’ve talked about some of them today. Power imbalances can be problematic. We sometimes have situations where there are significant mental health issues involved for one or both parties, personality disorders for one or both parties. There may be issues with one or more of the children that we need to be mindful of. Not that those cases can’t be settled in mediation, but we must be aware and go into the mediation with sufficient information.
If parties are particularly inclined to wage war, they can participate in a mediation and leave with a signed agreement but still not be committed to the process. At that point in time, you have what I call the “frequent flyers” of litigation. You’ve spent the time and the money to mediate only to wind up in front of the judge in the end. I have heard people say that mediation isn’t helpful for those frequent flyers if you know that at the end of the day you’re going to end up in court. But I would argue that mediation in almost every case has some sort of benefit – whether it’s to glean a little more information and figure out where the other side’s coming from in their case strategy, whether it’s to try to resolve some of the issues, or anything else. You can enter mini agreements that cover some but not all of the issues and then litigate the rest. Other than the potential for spending some time that you shouldn’t spend if you know your parties are committed to litigation, there aren’t downsides because it is a negotiation. The mediator’s not a fact finder. You’re not bound by anything. The parties are maintaining control and they can stop and start the mediation as it serves their needs.
Stephanie: I think that there’s usually a downside to any process, and with mediation, one downside is confidentiality. It’s a blessing and a curse. If you go through the mediation process and it falls apart, and you were not able to hammer out an agreement or even any mini agreements, then yeah, you put a lot of time and effort into a process that was ultimately unsuccessful – and then you cannot bring the information that was shared in the mediation process to litigation. In thinking about how you’re going to do your divorce, what process you’re going to try, you have to take that into consideration. That said, mediation is generally speaking successful and much less expensive than litigation.
Another downside is when a party is unwilling to be transparent in the process. I know Melanie and John have both talked a little bit about shuttle mediation, where the mediator is going from one room to the other and the parties are not in a room together. I rarely do that in my mediation process. I have the parties in my office together for the most part. For parties who are not willing to be transparent with each other and honest about what they want, mediation is probably not the right process for them. Parties must be willing to make some compromises, and willing to lay their cards on the table. If they’re not willing to do that, it’s probably not a good process for them. Yeah.
John: I think all of the above, Dan. I like to start my mediations with all the parties in one room. I was given this little story from a judge that we had in Department 2 about 30 years ago. He said that if you were sitting in your home and somebody knocked on your door and it was a total stranger and you opened the door and the person said, “I’m here to liquidate all of your assets, figure out who gets what, and also determine where your children are going to live until they’re 18,” you’d probably have the guy arrested! Well, that’s exactly what you’re doing by going into court with a judge. The judge has never met your children, has no idea what their personalities are, what their schedules are, has no idea what your schedules are, what your personalities are. He’s going to go by the book and he’s going to sell everything, divide whatever’s left, and figure out some standard parenting plan based upon something that he has on his computer. If you are part of the process and you determine the outcome, you are determining where your children are going to live until they’re 18 – and nobody knows the children better than their parents.
Also, we can do things in mediation that the court cannot. For example, yesterday I had a case where there’s a daughter who’s 17 years old and in the middle of her junior year in high school. If we go to court, the court is going to sell the house and then she’s going to be displaced. This girl is going to have to figure out where she’s going to live. She has college entrance exams coming up. She’s going to have to prepare for college. She would much rather stay in her own home, at least until the end of senior year of high school, then she can go off to college, and then the parents can do whatever they want with the house.
This is a situation where it’s a $6.5-million house, and neither party’s going to be buying out the other because they don’t have the financial wherewithal to do that and there’s a lot of equity in it. A judge would just sell the house, divide the proceeds, and who cares about that daughter who’s a junior in high school. We were able to work out a situation where dad is going to get his own place and they’re going to defer the sale until after she graduates from high school. We were able to look at what’s best for their daughter as opposed to what’s best for the parents.
A good trick when discussing parenting plans is to ask the parents to bring in a picture of their children. I put the picture right in the middle of my conference table when we’re having the initial meeting and I say, “We’re here for them. They didn’t ask for this divorce. They didn’t ask to be part of a broken home. You guys couldn’t get along and that’s unfortunate and we’re going to try to do what’s best to get your life back in order and get on with your lives. But these children are the ones that have to go through this changing of homes figuring out where their backpack is. When they get invited to a birthday party do I call mom to get me a present, or do I call dad to get me a present? They’re the ones that have to go through all the difficult laborious stuff that goes on in day-to-day life and they’re not responsible for whatever breakdown in the marriage occurred.”
I try to get the people to put their own personal feelings on the back burner and concentrate on those kids that they’re looking at in the picture right in the middle of the table. These things tend to start the process off on the right foot and I’m usually pretty successful in my mediations. We will always have some people who will not agree no matter what. They have to be told by a judge what to do. But I would say over 90% of the time, most parents will do what’s best for their kids, and I think that’s the best way of getting through mediation.
Melanie: You asked whether we have to be Superman/Superwoman to mediate. I don’t think we need to go to that extreme: I have certainly never needed x-ray vision in any of my mediations! But there are a couple of “superhuman” skills a good mediator brings to the table. Sensitive listening, really hearing what the people are saying, not only with your ears but also watching the body language, learning how they communicate, how they receive information as well as how they give information. I gave a presentation for the ABA Family Law Section at one of the conferences on how to mediate with someone who has either a personality disorder or a strong personality trait. What we’ve been taught to do by mental health professionals when we’re mediating in those types of situations is to speak to the disorder or to speak to the trait.
For example, maybe somebody who’s used to asserting a lot of power in their marriage and now they’re trying to exert a lot of power in the mediation. Normally the way you get through to that person is to manipulate them into thinking that the suggestions and the offers being put on the table are their ideas and they do have the power and they do have the control – that they’re the ones driving the bus. Whereas you may need to use more parenting -a-toddler skills with someone who is having a hard time making a decision. Here are your choices, let’s make the choices. Let’s not talk about what’s going on over there: you can’t have the cookie but you can have the apple or the banana, if you will.
You use some listening skills and some parenting skills. You need very strong problem-solving skills when you’re going to be doing mediation work because again, we’re not bound by the law so we can bring creativity to the table. Offering suggestions based on the experience of things you’ve seen work well for similar families.
The last point I want to make is about experience. I don’t want to imply that a newer lawyer or mental health professional cannot be a good mediator. They can. If they’ve done intensive training they probably have the skillset to mediate, but there’s just something about the experience – life experience and legal experience – that helps a mediator be a little more creative, offer suggestions, tell people what the judge is likely to do if they make the poor decision to try to litigate the issue. You can push through the impasse by relaying what your experience has taught you.
Stephanie: Every mediation where the parties come out with an agreement that they are satisfied with is a win. That’s a good mediation. I don’t have a particular story that sticks out as the best mediation ever. I like all of them. I love to work with couples who come to the table willing to sit down and try to talk through resolutions with each other. The breakthrough you typically get in a successful mediation – and even sometimes in an unsuccessful one that breaks apart, although those are fairly rare – is a greater understanding of the soon-to-be ex-spouses’ positions. When I’m meeting with a couple, one of them will often start talking, answering a question, or presenting a solution that they want to talk about, and the other spouse will be completely gobsmacked. They had no idea that was how their spouse felt about that issue! Those are eureka moments where they realize that they’re not as far apart as they thought on this issue.
Those are real breakthroughs, and they can make lasting changes in the dynamics of a couple’s post-divorce relationship. Through the mediation process, they learn that they’re able to solve their own problems. Maybe they need the help of a mediator to facilitate communication, but if they can come out with a sense of success – in their ability to co-parent or, if they don’t have children, to do the transactional work needed to “untangle their spaghetti” as they sell property or divide property. Those skills and that success go with them and can transform their relationship in the future. That’s one of the best things about mediation – and one of the things that I love to see happen in that process.
John: Litigation is especially gratifying to an attorney who likes litigation because they make a lot of money doing it. But it is more satisfying to me, especially after doing this for 41 years, for a family to resolve the differences between themselves and leave my office with a signed agreement – knowing that it’s going to be complied with and that their family is going to survive, and the kids especially are going to survive. I can’t think of anything more satisfying than having that happen, because even if I go to court and win every single issue, sometimes my client’s still crying. I say, “What are you crying about? We just won everything that we could possibly win,” and the client says, “Yeah, but I’m still getting divorced, and my children are going to live in two separate homes. What am I going to do?” It’s very satisfying when the couple has the ability to become part of the decision-making process. If you can convince them that that is the best way to go, you’re doing them an excellent service. You might not be making as much money, but you’re doing an excellent service for the family – and we try to represent families and not necessarily just our clients.