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In Family Law, How is Mediation Different from a Settlement Meeting?

by Norman Pickell ã 2000

Introduction:

"I arrange Settlement Meetings for clients. My success rate of settling the case at or shortly after the Settlement Meeting is pretty good. Therefore, I don't need to worry about Mediation ! Besides, Mediation would just add more cost to my client's separation/divorce." Does that sound familiar ?

Sometimes I hear lawyers make the above comment when the possibility of Family Mediation is raised. But there are several differences between Settlement Meetings and Family Mediation. (Since the procedure used in Family Mediation is much different from that used in non-family situations, I am confining this article to mediation of family law issues.)

In a typical Settlement Meeting, the clients and their lawyers meet in a neutral place. Usually Client # 1 is in one room, Client # 2 is in another room, and the lawyers meet in a third room. Lawyer # 1 talks to Client # 1. Lawyer # 2 talks to Client # 2. Lawyer # 1 then talks to Lawyer # 2. Each lawyer then talks to his or her own client, and so on. There is never any direct communication between the clients.

Family Mediation, on the other hand, has the clients meet face-to-face, usually in the absence of their lawyers, with a trained family mediator present. Of course, this only happens after some pre-mediation screening has been done by the family mediator to make sure that the couple are suitable for mediation and that neither party is put in danger by such a face-to-face meeting.

Before proceeding further, let me make one thing clear. Lawyers still have a very important role to play in Family Mediation. Mediation does not eliminate the need for each party to have her or his own lawyer. (More will be said later about the lawyer's role.)

Divorce is ranked at the top of the list of stressful events in one's life. However, Settlement Meetings have one purpose - to effect a settlement of the outstanding legal issues involving the clients. Emotions and post-separation/divorce dynamics are rarely factored into Settlement Meetings.

But if the parties have children of any age, the parties must consider more than just reaching a settlement. The parties need to recognize that a relationship will exist between them after the divorce. This relationship will be tested time and again, even after the children have left the nest and are out on their own. There will be birthdays, graduations and other school-related activities, weddings, grandchildren, funerals and other important events that will require some contact between the parties. Co-operation between the parents will go a long way in reducing the stress and anxiety in the lives of their children. As parents cope better, their children do so as well.

Even when there are not any children, Family Mediation can still assist the parties to dissolve their relationship where there has been a decision made to separate.

Constant fighting, arguing and blaming in a marriage or similarly committed relationship generally leads to more of the same while dissolving it. Unfortunately, the consequences of continuing this behaviour can be dramatic, including protracted litigation, escalating costs, and significant damage to the parties' children's emotional well-being. By the time the parties are in their lawyers' offices, they usually dislike each other, are very poor communicators, are highly distrustful, and are fearful of being hurt again.

But it does not have to be this way. People do have a choice about how to separate ! Solving disputes through negotiation is a part of everyday life. However, Family Mediation is more than just bringing in a neutral third person, ie. a mediator, to help the parties reach a settlement.

What is "mediation" ? There are many definitions. One of the better ones that I like is found in the State of Louisiana Mediation Act:

"…a procedure in which a mediator facilitates communication between the parties concerning the matters in dispute and explores the possible solutions to promote reconciliation, understanding and settlement."

Thus, "settlement" is only one of the purposes of mediation. "Reconciliation" does not mean "getting back together." It means helping the parties negotiate a workable way of living apart.

Mediation is a process - a voluntary, non-adversarial, process involving a trained, impartial third party. The parties, not the mediator, make the decision. The mediator has no power to render a decision or to force the parties to accept a settlement. Because the voluntary settlement that the parties reach is designed by the parties themselves, it is more likely to be carried out without the need for external enforcement or further litigation.

Steps in Family Mediation:

Generally, my family mediation is conducted as follows:

1. After I pre-screen the parties, I encourage them to each have separate lawyers (if they don't already).

2. Following my initial meeting with their lawyers in the absence of their clients, I have my first joint meeting with the parties.

3. I then have an individual meeting with each party separately, following which I have further joint meetings with the parties.

4. In some cases, I interview the children separately from their parents.

5. In appropriate cases, I will meet with new partners.

7. I meet with both lawyers from time to time as needed.

8. When the parties reach an agreement, I prepare a Memorandum of Understanding. After I have reviewed the draft with the parties, I send it to their lawyers to review with the clients. Once everyone is content with the Memorandum of Understanding, it becomes the Separation Agreement.

Lawyer's Role in Family Mediation:

Unlike other types of mediation, lawyers do not usually attend mediation sessions with their clients in Family Mediation. Mediation changes the role of lawyers from adversarial negotiators to legal consultants. The parties become the primary negotiators in mediation.

The role of the lawyers is to advise their clients throughout the mediation process on their legal rights and obligations. (Even if the mediator is a lawyer, the mediator does not provide legal advice to the parties.) The parties cannot make competent and informed decisions without sufficient legal advice. The lawyers will also review the Memorandum of Understanding and see their clients sign the Separation Agreement.

Mediator's Role in Family Mediation:

A mediator is a neutral person who is trained to help people talk so that the parties can better understand their problems and reach an agreement. A mediator does not take the side of either party, and does not pass judgment on the parties or their problems.

The function of the mediator is to manage the process for the parties, to get them talking, to help them better understand the problems and to help them reach a solution that meets their needs. The mediator keeps the conversations going and focused. Where there is a will to address conflicts constructively and creatively, mediators provide the necessary skill.

The mediator sets the tone for the negotiations. Right from the beginning, the mediator tries to create an atmosphere conducive to discussion. In Settlement Meetings, there is usually a certain amount of "posturing." On the other hand, the mediator will discourage intimidation, threats or bottom-lining. The mediator can remind the parties to take a more co-operative and less competitive approach. Because the parties have usually experienced a significant breach of trust, responding to trust issues is one of the most challenging tasks for a mediator.

The emotional consequences of the breakdown of relationships in family disputes cannot be overstated. Lawyers who are working hard to advocate for their clients may miss the emotional significance of some of the matters that cause the most grief and about which a person becomes most intransigent. Family mediators consider the emotions and the feelings that the parties are experiencing which can be a significant obstacle to settlement.

Mediation does not mean "giving in" or "giving up". Mediation clients are no "nicer" than the ones who go to court. The difference is the process: in a positive environment, the parties find practical solutions that work for both of them.

Mediation can be effective even when conflict and anger is high, and communication has broken down. Some people are concerned that they will not be able to negotiate effectively with the other party and then they will lose. But with a trained mediator, the parties can trust that they are not going to be abused or taken advantage of by the other party.

Communication:

Settlement Meetings do not usually involve communication directly between the parties. In mediation, on the other hand, the parties talk to each other, with the mediator present. Direct negotiation between the parties generally expedites the resolution of issues.

One of the most common complaints from parties entering mediation is that they cannot communicate with each other. Therefore, the trained family mediator will focus on communications and improved understanding. The more people understand each other, the more likely they can begin the process of talking constructively about the issues in dispute.

Exchanging Positions:

It is important for each party to understand the position of the other, even if he/she does not agree with it. Therefore, in mediation, each party relates the issue as she/he sees it. The mediator probes into the underlying and often unspoken issues. The underlying issues may be the deep-rooted reason for the party's stand. The mediator encourages the parties to talk about their feelings. This is not done in Settlement Meetings. When the feelings have been expressed and heard, the parties may be more willing to talk about a way to resolve the issues.

The aim of Settlement Meetings is to make a determination of rights. Usually a settlement is reached based on the law and the lawyers' interpretation of the facts. The law is not trying to have each side understand the position of the other. Very little is said in Settlement Meetings about underlying issues.

Exploring Interests and Needs:

A position is what a party wants or demands. An interest is why a party has taken a particular position. Much of the mediation process is devoted to exploring the parties' respective interests, rather than a positional approach to negotiation. The focus on interests in mediation changes the way in which the dispute is characterized, analyzed and processed. An agreement is unlikely to result from a consensual process unless the discussion can be moved beyond positions stated in rights-based terms, and explore how the conflict arose, the expectations of either side, and uncover what is critical to each side in seeking a resolution.

Generating Options:

Lawyers often excel in developing facts that support their positions, but bog down when it comes to developing settlement options.

Mediation recognizes that both parties have legitimate needs and helps develop options that will successfully reconcile those needs to the satisfaction of both parties. A mediator can explore suggestions as to available options that have not been previously considered.

Once the parties have identified their options, they can assess their merit and begin to negotiate their acceptance. Here the mediator often serves to facilitate communication, test realities and offers encouragement to the parties.

Children:

Family mediation focuses on plans for the future of the children, rather than on the parents' conflicts and grievances. The mediator can emphasize a co-operative parenting approach.

In Settlement Meetings involving custody and access, for example, agreements generally focus on legal rights. Negotiations between lawyers do very little to clarify ongoing parental responsibilities. On the other hand, mediation provides a forum for parents to structure their own unique parenting plan.

While Settlement Meetings do not usually include the children, often the mediator will meet privately with the children (but only with the approval of both parents). Children may have their own questions and concerns, and have needs that are quite different from their parents' needs.

Mediation can also help the parties explain the situation of their separation to their children in a constructive fashion. This is not done in a Settlement Meeting.

New Partners:

New partners are not usually included in Settlement Meetings. This can be a highly explosive subject (for the parties and for their children) if it is not dealt with. Often this topic is discussed in mediation.

Results:

The legal system concerns itself with the facts, and the results will often be black and white. In mediation, on the other hand, the parties are sometimes able to reach a solution that is more creative than that which a court would impose.

You need to consider the future relationship of the parties. This is where mediation can be a big help. In situations where the parties wish to preserve or improve their relationships, mediation is more likely to create a forum for frank exchange leading to a better working association, rather than either ignoring issues or using more formal approaches.

Benefits of Family Mediation not found in Settlement Meetings:

q negotiations take place with the assistance of a third party mediator

q both parties are made to feel safe and comfortable in each other's presence

q allows the parties to take charge of their lives and design a plan for their future that would be good for themselves and for their children

q facilitates, promotes and improves communication between the parties

q hard bargaining tactics are avoided

q helps the parties to exchange views and information

q helps to reduce conflict and hostility between the parties

q encourages co-operation and trust

q allows the parties the opportunity to express their feelings associated with ending the marriage

q the position of the other party is not filtered through lawyers

q the parties have more control over the outcome

q increases potential for solutions that may go beyond remedies which can be ordered by the court

q mediated settlements generally work better because of the fact that the parties worked co-operatively to arrive at the agreement, rather than having it negotiated back and forth between their lawyers

q preserves family relationships; a Settlement Meeting will not tell the parties how to do that

q can make termination of a relationship more amicable and less traumatic

q empowers the parties to solve their own dispute and find a compromise that works for both of them

q a mutually acceptable solution lets both parties be winners and respect each other

q the parties can deal with the issue of new partners

q can and should make post-divorce relations easier among the parties and extended family

q provides a way for families who are splitting into parts to learn to deal with the changes in roles, duties and opportunities and to face those changes with emotional balance

Added Benefits of Mediation Where There are Children:

q focuses attention on the children and in doing what is best for the children

q minimizes the harmful effects of divorce and separation on children

q courts deal with custody and access; mediators deal with parenting plans; parenting is a lifelong commitment that transcends court orders; children need both parents

q agreements reached through mediation can take into account the personal needs of children in much more detail than other kinds of agreements

q may involve children when their input is appropriate and helpful

q children of parents who mediate adjust better to their parent's divorce than do children of parents who simply go through the Settlement Meeting or litigation process; the children are happier, more secure, more reassured, and less distressed

q presents a co-operative model for addressing future changes in the lives of the children

q establishes a sound foundation for post-separation parenting arrangements

Advantages of Family Mediation for Lawyers:

We have talked about the benefits of mediation for the parties. There are also advantages of Family Mediation for their lawyers. Lawyers will have clients who are generally more satisfied by the experience of crafting their own resolution. Satisfied clients are more appreciative of the lawyer's services and spread the word. This causes more clients to seek out that lawyer for similarly satisfactory results. Lawyers representing clients in mediation are more likely to be paid their full fee. On the other hand, the lawyers who go the traditional route of settlement meetings and litigation often do not bill their full fee, or they often do not collect all the money that they do bill their clients. Thus, while lawyers may bill fewer gross dollars to an individual client, they collect a higher percentage of what is billed and get more business as a result of satisfied clients.

So You Now Think Mediation Might Just Be Worth a Try:

Statistics indicate that over 80 % of all mediations result in settlement. This is true even where all prior attempts at settlement have failed, where the parties were pessimistic about the prospects of settlement, and where the parties have spent substantial amounts of time and money preparing for trial.

With such a success rate, it is wise and relatively inexpensive to try mediation. You have little to lose.

In those few cases where no agreement is reached, the parties still retain the flexibility to walk away from mediation and go to, or continue with, court.

For those who want to learn more about mediation in the context of separation and divorce, there are two excellent books available. One is entitled Family Mediation: A Guide for Lawyers by Cinnie Noble, published in 1999 by Canada Law Book Inc. The other is Family Mediation Handbook, 2nd Edition, by Dr. Barbara Landau, Dr. Mario Bartoletti and Ruth Mesbur and published in 1997 by Butterworths Canada Ltd.

Norman Pickell is a lawyer and mediator based in Goderich, Ontario, Canada and can be reached at 519-524-8335 or nbpickell@odyssey.on.ca.

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Copyright 2000 Stephen R. Marsh
Article Copyright Remains in Author

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