June 1, 2004
Written by CMDR Staff
How Mediation Succeeds
Sitting in the reception area at the Centre for Mediation & Dispute Resolution (CMDR) and watching couples come and go is a heartening experience. Couples who are hesitant at the beginning become visibly more confident as the process evolves. The spouse who felt like he or she was being dragged, kicking and screaming, into mediation is now the first to arrive at the office for an appointment. Individuals who never reconciled a bank statement become empowered with financial knowledge. Spouses, who thought they would need to give up everything to financially support their families following a divorce, discover there actually is equity and fairness in financial support.
How does mediation succeed? Perhaps some insight into mediators, clients and the process can explain.
Types of Mediators
Mediators come in different packages and from different backgrounds. They may, for example, have different professional training—some are social workers or psychologists by training, some are attorneys and some, like Centre for Mediation’sdirector, Lynne Halem, have doctoral training in sociology or other family-related fields. Regardless of their professional backgrounds, to be knowledgeable and effective in the area of divorce mediation, the mediator should
have expertise in the areas of family law, taxes, family dynamics, children, and, of course, communication and facilitation skills.
Mediation cannot occur in a knowledge vacuum. One cannot discuss support and property issues without dealing with taxes and family law in the Commonwealth. One cannot discuss children and custody without knowledge of families and interaction patterns.
Mediators also may have different styles. Some researchers have gone so far as to label different models of mediation and type cast mediators in different kinds of roles. The extremes ranging from the authoritarian mediator who forces solutions on clients versus the laid back mediator who supplies little input and depends solely on the clients to fashion and structure their own agreement.
CMDR’s Philosophy
At the Centre for Mediation, we believe that mediators must be flexible in their approach and not rely on one model or role. To be successful, mediators must be able to change approaches and models, often within the context of one session. The most effective mediators are not afraid to say a proposal is inequitable, unworkable, or impractical—or to suggest alternative options. Conversely, a mediator should not impose his or her biases on a couple or push them to agree to the mediator’s solution. Balancing these opposites is delicate. The mediator needs to be involved in the process, a referee at times, but the ultimate solutions need to be the couple’s. Only when each spouse “owns” the process and final decision will the agreement survive in the long term.
Mediation clients are not easy to classify, but most share the goal of wanting to reach agreement without entering into a prolonged, adversarial battle. Litigated battles are financially costly, emotionally draining, and rarely, if ever, result in agreements that satisfy both sides. The outcome is a win-lose situation and, ironically, each spouse feels the other has won and they have lost.
Often when couples are contemplating separation or divorce and someone (usually a therapist or good friend) suggests mediation, the couple initially rejects the idea. They are under the misconception that couples who enter mediation either have great relationships and communication skills; or no assets; or earn equal salaries; or have no children. Couples in mediation aren’t very different from those who choose to go the legal route. Some yell, some cry, some pace the room, some stare out the window. Some are angry, some are hurt, some are fearful; some are all three and then some. At CMDR, it is the mediator’s mission to help people to communicate with each other in spite of how they are feeling. Believe it or not, couples in mediation do reach agreement and the win-lose situation becomes a win-win.
Face to Face
Part of the secret of mediation is the face-to-face interaction of the couple. By sitting across from each other, the underlying reasons can become clearer. Couples are in a safe environment with a mediator who ensures that each one’s voice is heard, who translates when they are misunderstood and who helps them to really hear what their spouse is saying. Statements like, “I want to keep the house” are clarified. “I want to keep the house because a move now could be devastating to the kids.”
Joint Problem Solving
A fair agreement is reached in a manner similar to creative problem solving. To solve a problem, the couple needs to understand what has to be solved. Unless a couple has the marital experiences of Donald Trump or Elizabeth Taylor, they have no idea what belongs in a good, fair agreement. The mediator needs to explain the different areas that need to be covered and to explore the myriad of options available to them. At CMDR, our mediators help couples to expand their field of vision. This is where our expertise in finance and taxation plays a key role.
An interesting phenomenon among couples in mediation is their ability to put their emotions aside and accept the approach required for pragmatic, intelligent problem solving. The solution: An agreement that enables each spouse to live as comfortably as possible, and to arrive at a place where they both feel they have achieved a fair and equitable settlement. Often agreements are built on incentives to earn more instead of penalties for a lower income.
Mediation at CMDR says to couples, “It is your life and your agreement should be unique to your needs and your situation.” What is good for Nancy and Paul may not be good for Ellen and Michael. The decision-making is in your hands, but our mediators recognize that you need the information necessary to make intelligent decisions. At CMDR, our mediators have years of experience with hundreds of couples: this gives them an enormous knowledge base of creative solutions upon which to draw.
Despite anger, hurt and fear, mediation teaches couples how to give, to take and to respond to genuine concerns which further enables couples to reach agreement. If spouses and ex spouses learn how to communicate with explanations of how and why, they will be able to adapt their agreement without returning to a mediator, a lawyer or to court.
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