Family Law Mediation

Introduction

Many Dispute Resolution Centers, especially Private Alternative Dispute Resolution Centers (PADRs) offer family law mediation in order to provide a complete range of services.  The area of Family Law Mediation covers three distinct types of mediated encounters:

• Family Counselling Divorce Mediation (also known as Therapeutic Family Mediation)
• Legal Issues Divorce Mediation
• Moderated Divorces

In addition, there is the area of Family Conflict Mediation -- an allied area of practice that is actually a species of Conciliation that is used for divorce avoidance rather than acceptance of divorce.

Family Counselling Divorce Mediation

Family Counselling Divorce Mediation is a therapeutic adjunct to divorce.  It aids the parties in resolving grief issues, interactive pathologies and relationship issues.  It has a therapeutic goal and is often provided by co-mediators (two mediators, rather than one) in connection with family counselling services during the divorce process.  The process takes five to six sessions of about two hours per session.  Generally only the parents attend the sessions.

1. In the first session the ground rules are set, the parties are introduced to the process (including universal issues), a discussion is begun on the "agreement" to divorce, there is an explanation of the legal process involved, methods of note taking and reflection are emphasized and then there is a join session exposition of issues by each party (with aid in taking notes).  Confrontation is allowed, but is muted by the mediators and the parties are asked to prepare for session two "focus on the children."
2. Focus on the children ("think of the children first") starts as a joint session, with venting on collateral issues (allowing the parties to work through some issues) followed by caucuses (for more venting and an analysis of the issues in the divorce, the pathologies of the situation, and the stages of grief each party is at), another joint session and final caucus, with the final caucus directed towards children's issues as impacted by the other matters.
3. Separate caucuses and issue identification ("what do we need to resolve before we can take care of the children").
4. Therapy and issue acceptance.  The fourth session is also separate and may include (if necessary) a therapeutic plan and a commitment to the process.
5. Issue resolutions (resolving the legal and behavior issues, acknowledging standards and the need for long term adjustment) in separate and joint caucuses as appropriate.  The focus is on resolution, caucuses and appropriate negotiations.
6. Repeat/continue the matters from session five, if necessary.

Obviously this shortened format can not solve all of the personality and psychological pathologies and issues that surround a divorce.  The purpose of the format is to create a special sequence (discrete from the other therapeutic interventions in the parties lives, if any) and to initiate a three fold process of (1) focusing on necessary resolutions (creating insight), (2) focusing on and defining appropriate standards of behavior, (3) relating to and resolving the issues required by the inflexible requirements of the law (custody, visitation, property division).

The sessions generally are spread out over a period of about one and a half months, with the final divorce hearing scheduled shortly after the sixth session.  This method is not appropriate for situations where there are complex and bitter legal issues or where the parties are unwilling to engage (although initiating the process often creates engagement and simplifies the legal issues).

Specialized legal , family counselling and psychological backgrounds are necessary to participate in this process.

Legal Issues Divorce Mediation

This is a "typical" attorney-mediator mediation session where the parties negotiate the issues of property, visitation, support and any other pendant legal issues.  It typically takes five to eight hours and is also known as "Legal Issues Mediation."  It requires some additional training in family law so as to expose and sensitize the mediator to the appropriate legal issues (including what the law of the jurisdiction does and does not allow).  Often a mediator's knowledge of the law will allow for a resolution that the parties (and their attorneys) will not have thought of or will alert the parties to the fact that a particular resolution is not available under the law of a particular jurisdiction (or will need to have a specific structure).

Moderated Divorce Mediation

This is a process that supports divorce.  The parties go to a joint mediator rather than each party hiring an attorney.  It is well described by the book Marketing & Maintaining a Family Law Mediation Practice available from Texas Lawyer.   Basically the parties, who are agreed agreed on a divorce and most of the issues, have three to four sessions where they work out the final text for custody, support, and property division (including debt division).  The final text is incorporated into an agreed decree that is presented on prove-up to a judge.

The general process goes as follows:

1. Initial visit, review contract (which contains ground rules), confirm agreed nature of divorce, schedule meetings, confirm fee and cost deposit, general administrative information, draft and sign petition with answer and ADR commitment.
2. First caucus on agreed text for custody and visitation.  Develop agreed text, with reference to controlling state laws.
3. Second caucus on agreed text for support.  Discuss controlling state law prior to client statements or engagement in caucus.  Then develop agreed text on support issues.
4. Third caucus on property division issues.  Discuss separate property and community property laws of state (educating parties as to their true BATNA).  Then engage clients in joint caucus developing agreed text on property division issues.
5. Final caucus (prior to prove-up) reviewing legal text of agreed order incorporating the agreed texts, then proceed to court setting for prove-up.
6. Refund of any overpayment on fee and cost deposit together with final mail-out of certified copies of decree, case closing documents.

The method has many reported (actual, rather than theoretical) pitfalls and advantages, well reported in the appendix of  Marketing & Maintaining a Family Law Mediation Practice (the author surveyed clients for satisfaction and reprinted a substantial collection of complaints from individuals who were not pleased by the results obtained, as well as clients with mixed feelings and those who were very happy with the results).

A Moderated Divorce practice is appropriate for large communities with substantial populations of well educated and liberal individuals.  A university and a potential client base of at least 250,000 people appear to be the bare minimum for an individual considering this type of practice.

Conclusion

Most references that discuss the mediation of family law issues do not distinguish between the three most common methods of family law mediation (and overlook family law conciliation processes).  Regardless of whether or not a PADR decides to provide, or affiliate with providers of, family mediation services, it is appropriate to understand the variations and different meanings that the words have.

This Website is by Stephen R. Marsh
Contact Information at:
http://adrr.com/smarsh/