April 1, 2016
Written by Lynne C. Halem
Since the 1980’s, mediation has been touted as a vehicle for resolving disputes. Comparisons of mediation to litigation have appeared in all forms of media, highlighting savings of time, money, and anxiety, not to mention the appeal of a confidential and private process. Yet with all the attention paid to mediation as a method for reaching agreement, few have spoken of mediation as a tool for preventing disputes.
Let us take a step back and consider the power and effectiveness of mediation as a proactive approach for avoiding conflict.
Viewed from this perspective, mediation offers participants a process to identify and design terms for averting disputes. The secret ingredient lies in the mediator’s ability to help clients anticipate potential changes in circumstances, as well as to focus on the questions facing them in their present situation. This focus on both present and future can lead to the creation of a dynamic agreement, with thoughtful strategies for adjustment to change.
In considering the preventive capabilities of mediation, it is helpful to use examples.
In this article we will focus on Cohabitation Mediations. Future articles will deal with Business Mediations, Unmarried Couples with Children, and Families taking a Proactive Approach to the Division of Estates.
Take Margaret and Ted, a couple in their thirties, who are thinking of marriage but decide that living together will provide a good testing ground for the long-term stability of their relationship. Margaret has a good job and believes that she has found her career path in the sales division of a major pharmaceutical company. Ted will be completing his law degree this year and has a promising job prospect as an associate in a major international firm.
Margaret and Ted entered mediation, seeking assistance in structuring a cohabitation agreement. They were particularly concerned with issues of financial responsibility given that Ted was a student and Margaret was employed full –time. With the help of their mediator, the couple identified the following financial areas:
In an effort to anticipate changes in circumstances, Ted and Margaret tried to speculate how their present division of finances might be altered by a future decision to marry. If, for example, Margaret were to assume responsibility for more of the bills now, this arrangement might be acceptable to her if they remained a couple. But, Margaret voiced, “What if she agreed to assume greater financial liability and they broke up?” To carry the thought process further, what if Ted embarked on a lucrative future path with conceivably greater income potential than she, would “fair” now be “fair” tomorrow? To resolve this dilemma and to create a present and a future agreement that would feel fair now and tomorrow, Ted and Margaret incorporated terms for compensation to Margaret if their relationship did not result in marriage. For them a rather complex formula defined their sense of fairness. They included variables for identifying each one’s monetary contributions, each one future income taken at a specific point in time, and terms for reimbursement.
Other couples, working on Cohabitation Agreements, focus on role definitions. For example they might wish to define each person’s individual and/or shared responsibility for daily tasks, or each one’s conception of preferred living environment. Lifestyles and habits might be addressed: what if one person is neat and orderly, and the other sloppy? What if one wants to buy furniture, hang curtains, and put up pictures, while the other is content with hand-me-down basement leftovers from friends and family? It is easy to see how the questions can quickly multiply, some dealing with the present arrangement and others demonstrating far-reaching concern for the impact of future developments.
Mediation is intended to be an empowering process in which participants take responsibility for the outcome.
However the success of the process relies on the mediator’s ability to help participants define the issues and concerns to be addressed: To raise questions not only related to the present arrangement, but also to anticipate ramifications of a change in circumstances. The mediator needs to be skilled at moving between the present and the future, and at facilitating the couples’ ability to envision different circumstances at different points in time. Mediation, as a tool to prevent future disagreements and conflicts, is a powerful addition to the mediation arsensal.
Indeed, even in mediations geared to the resolution, not prevention, of conflicts, the mediator needs to help participants to consider the future as well as the present. To do otherwise, is to ignore the potential for change.
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