Category Archives: Family mediation

The problem with mediator ground rules

One way of looking at the mediation process is as a means by which disputants can explore the possibilities for resolving their differences, it being understood that the outcome of the process is entirely up to them. It’s often said, ‘the disputants own their differences while the mediator owns the process’, or something to that effect.  But if mediation is predicated on self-determination, then party-choice should be privileged not just for substance but also process. Party-choice may be impinged on when the mediator sets the ground-rules (i.e., her preferences for the process) of the mediation.

Watch this trailer for a new film, “Mediation”, that is a commercial take on the disconnect between mediator ground-rules and process outcomes:

(Hat-tip: Rick Weiler)
Advertisements

“The age of passive deference to professional advice is over”

Julie Macfarlane, B.A., LL.M. (London), Ph.D. (C.N.N.A.)

This quotation is taken from a recent post on Dr. Julie Macfarlane‘s blog on the National Self-Represented Litigants Project that takes its mandate from the National Self-Represented Litigants (SRL’s) Research Study, carried out, 2011-2013.

There has been wide-spread growth of SRLs in Ontario, seemingly because many in our society simply cannot afford lawyers but also earn too much to be eligible for legal aid.

The thrust of her post is that self-represented litigants (SRLs) want help from lawyers in order to be effective self-advocates. In other words, they want coaching from lawyers so they, the SRLs, can better represent themselves in the justice system. While providing such a service may seem counter-intuitive to lawyers, Dr. Macfarlane argues it is in their own interest, not to mention the judiciary’s as well.

From the meekest to the most assertive, SRLs in my study told me over and over that they do not want to be simply told what to do by an advisor who seemed to have their own agenda and appeared uninterested in their concerns, expectations and needs. They did not want to have “expert advice” rammed down their throats before they felt that they have really been listened to and their point of view acknowledged and taken seriously.

In my view, this observation about SRL aversion to expert advice also validates the promise of mediation. For mediation to be a real alternative to other dispute resolution processes, such as litigation, self-determination must be paramount, and not just with regard to substantive disputes but also with respect to the process itself. All too often in family mediation, the community of practitioners assumes that to mediate separation, divorce, parenting agreements, financial issues, the mediator must have substantive qualifications in those areas by having trained as a lawyer or a therapist. When mediators are informed or influenced by training and mind sets of disciplines other than conflict resolution or intervention, it is invariably at the cost of party self-determination.

How much does divorce cost?

Sara Bensman

Sara Bensman is a mediator, parenting coordinator, and child custody mediator in Asheville, North Carolina. Last month, she published a post on her blog about the value of mediation. Her accompanying graphic representation compared the costs of outcomes, financial and otherwise, as between litigation and mediation and is reprinted below:

Marital Mediation, say what?

In the post yesterday featuring the UK Ministry of Justice’s recently released video on family mediation, a distinction was drawn between couples counselling and family mediation (i.e., divorce or separation mediation).

Patti Murphy, Divorce, Couples and Family Mediation

Patti Murphy, a family mediator based in Brooklyn poses the questions:

But what if the couple didn’t want an archaeological exploration of past family behavior or accept that the issues between them were so insurmountable that the only answer was to walk away?  Then what?
The good news is – there is another option: Couples Mediation.  It’s really more of a new application than a new process.  Mediators have been helping couples resolve conflicts for years … but it turns out these same skills can be used to avoid, rather than ease, divorce!  This process, (also called “Marital Mediation” for officially married couples) is helpful for those couples that want to stay together.

In my own view, unlike therapy, it’s not about fixing or curing people, but rather it’s about supporting conversations that can bring both people greater clarity on their situation, on the options they have, and on what to do to move forward.

UK Ministry of Justice video on family mediation

I have a few glosses² to add to this:

  1. Contrary to the video, I prefer the objective of mediation to be stated as a process in which people can explore, with the support of a trained, impartial third person, the possibilities for resolving their differences. In other words, the objective of the process is whatever the clients say it is, rather than implicitly ‘agreeing arrangements for the future’;
  2. In the Canadian and Ontario contexts, background information and resources can be found at the websites of the federal Department of Justice and the Ontario Ministry of the Attorney General; and
  3. Among other websites in Canada that can help with finding a mediator near you are the Ontario Association for Family Mediation and its Ottawa chapter.

Family mediator’s list of myths and misunderstandings

Florida attorney and family mediator, Diane Danois, recently set out a number of myths and misunderstandings that may affect decision making when separating and divorcing:

Diane Danois

#1 Myth: Using a mediator precludes me from consulting with a lawyer.

#2 Myth: The first step is filing and “serving” my spouse.

#3 Myth: I have to resolve all of our issues in mediation.

#4 Myth: I have to be in the same room as my spouse.

#5 Myth: I won’t be able to consult with experts (accountants, realtors, etc.) to help me make final decisions. I will be all alone in my decision-making, and won’t get what I deserve.

#6 Myth: I will be getting legal advice from a mediator, instead of a lawyer.

None of these statements is correct in Florida (or in Ontario for that matter) as Danois explains in her recent article on The Huffington Post.

How mediation can help in transborder parental child abduction

Sabine Walsh

Sabine Walsh is a certified International Family Mediator based in Ireland and reports on how mediation can support parents in cases of international parental child abduction, “where one parent brings the child or children to another country, often their country of origin, without the other parents’ consent“.

Mediation however offers a number of specific advantages to parents in the context of a child abduction case. One of these relates to the scope of the dispute. In general, in cases taken under the Hague Convention on the Civil Aspects of International Child Abduction (1980), to which 86 countries are parties, the only issue that can be decided by the court is whether the child or children should be returned or not returned to their state of habitual residence. This means that the court has no jurisdiction to decide any other matters relevant to the future of the family, such as custody, access, maintenance or any other matters that might require a decision in order for the family to move on. A new set of proceedings to decide such matters must be commenced in the relevant state, depending on where the child and the parties will live. This means, in effect, that at least two sets of legal proceedings in two different courts, possibly in two different countries will be required to regulate the circumstances of the family after the abduction. In mediation however, the scope is determined by the parties, not by legal rules, and therefore all matters relating to the dispute can be addressed. In practical terms this means that the parents can address not only where the child or children will live, but all other arrangements such as contact with the non-resident parent, a parenting plan, and financial matters. Not only will this save the family time and money, but it can significantly reduce the stress on everyone, in particular the children. (emphasis added)

She also identifies best practices in international family mediation:

The first hallmark of international family mediation is that it is carried out by co-mediators. The co-mediation team should ideally consist of one male and one female mediator, one from each of the parents’ countries, and one being from a legal and one from a psycho-social background. This is not always achievable but at the very least, one mediator should be from each of the parties home countries. In an Irish-German family, for example, one mediator should be Irish and one should be German. Both joint sessions and caucuses are used in this type of mediation, and sessions are usually scheduled over a period of three days approximately. Very importantly in cases of child abduction, arrangements are often made for the left behind parent to have contact with the child at some stage during, though not actually in the mediation. The voice of the child or children will usually be brought into the mediation, either directly or by means of an interview with a third party such a psychologist or social worker. The parties legal representatives are actively involved at all stages, particularly when it comes to drafting the agreement, and translators or interpreters may also sometimes be used, though it is generally preferable if a common language can be found to mediate in.

You can read Walsh’s entire report here.