Recently, a friend called me from out of town and asked about mediation. He and her wife are divorcing and he was having trouble negotiating with her. While they’re not really that far apart in their positions, nothing was happening because he and his wife were having a hard time communicating. Since my friend could not be objective, I thought that he might not be the right person to start the negotiations. It is almost impossible to negotiate if one party is involved and cannot see the “forest for the trees”. Since they were using a family mediator, I suggested that he talk to the mediator and negotiate. My friend’s response was a bit puzzling; this mediator wanted the parties to negotiate among themselves, which I found difficult to understand. That brought me to the topic of this article of “what does a family mediator do?”
A mediator is like an ombudsman who negotiates between the parties. In order to negotiate fairly and neutrally for both parties, a mediator must understand the needs of the parties. To make that determination, a mediator must have good listening skills, patience, tolerance, flexibility, creativity, and persistence, as well as the ability to manage conflict and be empathic with affected parties. While listening to the parties, the mediator must also be very careful not to project her opinions or values onto the parties and risk introducing issues that are not her concern.
Once the mediator has helped the parties narrow down the issues important to them, they will often meet privately with one or the other party to present the other party’s point of view. This meeting, known as a caucus, is private so that a mediator can question the position of one of the parties, without belittling it in front of the other party. The mediator might challenge the party by pointing out weaknesses in her position, for example. Although this evaluative method is very useful in bringing the parties closer to an agreement, it also runs the risk of alienating the party. Often, if the mediator expresses the other party’s point of view too strongly, it can appear that the mediator is taking sides. This can usually be alleviated beforehand; If the mediator includes some explanation of this evaluative role at the beginning of the process, the parties will know that what the mediator does to one, he will do to the other equally.
The mediator, as an objective third party, can often identify options that the parties might not think of for themselves. This creative component of the role of a mediator is one that most mediators enjoy. Conflicting parties often become so entrenched in their positions that they see the agreement only as a weakness. The mediator, however, can often devise solutions that can incorporate elements of compromise and gain for each party. Being able to “think outside the box” is therefore a critical skill for an effective mediator. The mediator may go back and forth between the parties in an attempt to bring them closer to a consensus until a resolution is reached.
If an agreement is reached, the mediator must ensure that it is in writing. However, that does not mean that the mediator must be the clerk. When the parties are represented by lawyers, the lawyers will generally write the agreement with the mediator simply by making sure it is done. If the parties are not represented, the mediator will usually draft the agreement as well. Once drafted, each party must sign the agreement, which then becomes binding on the parties and enforceable. In family mediation, the agreement is called a Marital Settlement Agreement (MSA) and will include a Parenting Plan if children are involved. Once signed, the MSA is presented to the judge at a final hearing (such as a trial), where the judge will incorporate the agreement into an order that the court can enforce.
While we are on the subject of what a mediator does, the question arises: what does a mediator not do? First of all, a mediator cannot practice law or any secondary profession he has while mediating. A mediator must at all times be an impartial and objective third party whose sole role is to facilitate the mediation process.
The mediator is there to help the parties come to an agreement that they work out together. When the parties are represented, it’s easy to let the attorneys answer any legal questions that arise. The most difficult scenario is when the parties are not represented. The mediator can provide the information required for the parties to make informed decisions. However, even if the mediator is a lawyer, he or she cannot apply that legal information to the specific facts of the parties’ case and provide legal opinions. The only legal advice that the lawyer/mediator can give is that the parties have the right to hire a lawyer to help them with the mediation and the case. Similarly, if the mediator is a psychologist or therapist and finds that clients or their children require counseling during the process, the mediator may suggest that the parties receive counselling. However, even if the mediator is a counselor, the mediator must not do the counseling.
Whether the mediation is a divorce, a contract, a foreclosure, or any other matter, the role of the mediator is the same. He or she must serve as an objective and impartial third party to help the parties resolve their disputes. To do this, the mediator must identify and clarify the issues for the parties, evaluate and test the parties’ positions, try to find creative solutions that allow each party to win and compromise, and ensure that any agreement reached is put in writing. . Despite any additional training a mediator may have, the mediator may not serve clients in any other capacity. Although still fairly new, mediation has become an important tool within our legal system for resolving disputes that saves people time and money and helps preserve relationships.
