As published on mediate.com on November 1, 2018.
When trained as a mediator, the first thing I learned was that mediation is a client-driven process. The ideal is for the mediation clients themselves to figure out the terms that will resolve the disputed issues between them. The mediator can facilitate the process by helping the clients communicate clearly. We are also taught to help our clients focus on their needs, values, goals and fears as they are attempting to come to agreement. The aim is to determine what the clients’ interests really are. If we can do this, the clients (with our help) can find more terms that satisfy both of their interests. It no longer is a zero-sum game.
Brainstorming and mediation as a “client-driven” process
Some mediators believe that brainstorming for solutions should always come from the parties themselves and never from the mediator. This becomes an important issue in many mediations, because the mediator (unlike the clients) has experience with the issues presented in the mediation. Premature sharing of this experience can lead a mediator to short-circuit the process by suggesting solutions before the clients have had a chance to arrive at their own solutions.
At what point, after listening to the mediation clients unproductively clamber for an answer to an issue, does the mediator pipe up and say, “Some couples have tried this, and it has worked for them.” or “What about this as a possibility?” Is this an underhanded form of prohibited brainstorming for the clients? Is the mediation no longer “client-driven”?
It’s sometimes difficult to stand back and watch clients flail at possible answers when the answer is so apparent to us. But it’s important for the mediation clients to try, have that learning experience, and experience those feelings of frustration. Each of the parties may have a good and supportable reason for their choice of a solution. But what we can do as a mediator, is to enter into the conversation, gently suggesting, “Have you thought about this?” The clients now have had the experience of trying their solutions, and are ready to try out yours. Is it still a client-driven mediation?
Where does “the law” fit in to a client-driven mediation process?
We’re told as mediators that we cannot provide legal advice to our mediation clients. We need to stay neutral towards both the parties to the dispute, and the legal advice could make one party feel that the mediator is taking the other party’s side in the dispute. If the mediator is an attorney, providing advice that benefits one client over another client is a clear violation of the ethical rules regulating lawyers’ professional behavior.
However, we can provide “information” about the law. The difference between “advice” and “information” is generally clear cut. We can talk about the range of settlements when we describe how other clients have solved issues. We can talk about what the various reported court cases say about an issue, and describe the issues in which the courts have not provided rulings. We can describe legal issues that remain a “gray area” of the law (i.e., issues that have not been clearly decided by the courts, by statutes or regulations). We can also parse rulings from court cases for our mediation clients, and explain how they might be dependent on the particular facts of a case. We can analyze the language of statutes and regulations with our clients, and let them draw their own conclusions.
If we provide legal information, how closely must the client-driven process and the terms agreed upon as a result of that process, conform to the law when clients make their agreement?
Certainly, some states require that the result of the mediation must satisfy “the law.” This is often true in divorce cases, where a separation or divorce agreement must meet legal and equitable standards. If the mediated agreement does not meet the legal standards, the judge will not allow the divorce to go forward under the terms of the agreement. This poses problems when mediation clients go to court pro se (i.e., unrepresented by an attorney) to have their divorce agreement blessed by the judge. A judge may demand that they change a significant term in their agreement before the divorce can go forward.
But what if the parties are not going to be engaged in a court case, perhaps because of the cost involved. How strong an influence should “the law” be in those situations? Mediators have varying opinions on the role of “the law” when the parties are trying to resolve a dispute that will never get near the courthouse steps. In those situations, some mediators may not refer to existing law at all.
Other mediators (myself included) believe that “the law” reflects societal and cultural values and ethics that have developed and matured over many years. As such, it has great value to us as a template to guide us in our everyday lives. It is to be respected and accessible in our mediations. We’re mediators that practice in the “shadow of the law.”
What if they ask you to come up with something?
What if your mediation clients, after much discussion that does not bear fruit on an issue, ask you to come up with a solution that proposes a term for their agreement? The idea is that the mediator can come up with something – let’s say a plan for spousal support in a divorce, or property division in a prenup for a second marriage.
This has happened to me many times. The parties can’t figure out an important term of their agreement. Both parties ask me to offer a term that I think is fair. I agree, and then proceed to formulate the term after the mediation session, and send it to the clients as part of a term sheet, hoping that it will be acceptable to both sides.
Am I functioning as a mediator? Is the process still client-driven? What if my proposal is too “rich” for one side, or too “stingy” for the other? What if one client is extremely unsatisfied with my “ruling”?
This has happened (unfortunately) quite frequently. It can even blow up the mediation. That client may no longer feel I am neutral and unbiased. He or she may feel I am preferring the needs of the other party over their own needs. In my mind (and drawing upon my experience and knowledge of the law), I tried to create a balance where the needs of both parties are supported with the backdrop of what the existing law is on the issue. I thought the result was “fair” under those standards.
But mediation clients also have beliefs as to what fairness is, based on their subjective feelings, not mine. And after all, we’re talking about their money, their security, not mine. Actively proposing a term could result in the mediator falling squarely into the pit of client-driven anger.
Sometimes presenting a “ruling,” tentative as it might be, can move the process forward. The mediation clients need to both know that it is a start, and not necessarily the endpoint of searching for agreement on an issue. They can evaluate it. We can all discuss it. Proposing a term can be problematic, but sometimes it is the only way a mediation has a chance of succeeding.
Clients don’t want a mediator who just rubber stamps their ideas or who always solves an issue by averaging their two proposals. Mediation can also thrive when a mediator tells the clients his or her honest “truth” about an issue. Yes, it’s the mediator’s truth, and not the clients.’ But the clients sometimes really would like to know the mediator’s personal perspective on an issue.
They want to know what we really think – our unvarnished perspective. We’re being engaged for our expertise and experience, not just to be agreeable for each of our mediation clients. We’re not here to promote the idea that every dispute has two equal sides – that would be promoting a false equivalence.
You, too, at times may feel that your mediation clients are looking up to you as a judge of sorts. Because you are functioning as an unbiased, neutral as to their dispute, you bear many similarities to what a judge aspires to. That view of you as a judge (or a parent, which is another feeling I get that is beamed at me at times by my mediation clients) can be a very positive dynamic leading to success of the mediation process for these clients.
It’s best for the clients themselves to determine their own “rulings. But when asked to step in and become a judge on an issue, you’ll have to decide whether or not you’ll want to take the chance. It can move the process forward enormously, or it can lead to mediation failure. Sometimes, if you do nothing, the mediation will fail, anyway. If there is a need, it may be time to embrace the possibility of getting in touch with your “inner judge” as a legitimate part of a well-rounded mediator’s toolbox.
© 2018 Laurie Israel