G. Mediation
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 147-161 |
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The essence of mediation is that the family members are themselves responsible for determining the consequences of their divorce. Self-determination with the aid of an impartial third party is the cornerstone of mediation. Divorce mediation is a process aimed at facilitating the consensual resolution of the economic and parenting consequences of marriage breakdown.
The mediator must defuse family conflict to a level where the parties can communicate with each other. They can then look at their options and apply objective standards with a view to negotiating a fair settlement. Mediation is neither medication nor meditation. Mediation is not to be confused with family therapy. Mediation aims to resolve the practical economic and parenting consequences of marriage breakdown. It is a time-limited process that is intended to produce a formal written settlement. Mediation looks to the future rather than the past. Mediators are usually unconcerned with
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the reasons for family dysfunction or the search for possible cures. They are not marriage counsellors or therapists. They deal with the practical consequences, not the causes, of marriage breakdown.
Mediation must also be distinguished from arbitration. In mediation, disputants seek a mutually acceptable solution. In arbitration, they agree to be bound by the decision of a third party.
Mediators come in diverse shapes and sizes. They may be engaged in private practice. They may be connected with courts. They may work in community-based services, such as Family Service Agencies.
Most mediators who deal with support and property disputes between separated and divorced spouses are practising lawyers. Lawyer-mediators usually adopt a pragmatic approach to the resolution of economic and parenting consequences of marriage breakdown by focusing on legal rights and obligations. Parenting dispute mediators are more likely to come from the fields of social work or psychology.
Some mediators have no direct link with the established professions and are self-made, and in some cases self-proclaimed. For many professionals, mediation is still a sideline generated by clientele demands. Some mediation models favour a team approach where a social worker or psychologist and a lawyer jointly or sequentially engage in the mediation process, but there is no one single or preferred model.
Mediation is not a monolithic process. Systems and processes vary even though the goal of consensual resolution is constant.
The most common responses to conflict are "fight or flight." Often neither is the right response. Mediation provides an alternative to conflict when spouses or former spouses are unable to negotiate directly with each other but wish to avoid the adversarial postures of the legal process.
· Negotiated settlements achieved through mediation may be more likely to be respected by the disputants than court-imposed orders.
· The privacy of mediation is less threatening than open conflict in a public courtroom.
Mediation can provide more personal or "tailor-made" solutions than traditional legal procedures.
Successful mediation is much cheaper than protracted litigation. However, comparing the costs of successful mediation and litigation is misleading. The
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vast majority of divorces involve the negotiation of settlements by lawyers. Very few divorces involve a trial. Negotiation through a mediation process is not necessarily cheaper than negotiation through the traditional legal process. Indeed, many mediators insist that any mediated settlement must be reviewed by independent lawyers hired by each spouse.
Although mediation is not always cheaper, it appears to have several advantages not enjoyed by the legal process. Family members are often intimidated by the formal complexity and adversarial nature of the legal process. When the trial date looms, they would rather surrender than engage in warfare through the courts. For many divorcing couples, mediation offers opportunities for them to retain control over their own lives. In parenting disputes, in particular, mediation can establish a framework for future communication and an ongoing exchange of information and ideas respecting the upbringing of the children.
As already noted, mediation is goal-oriented. It aims at an end product - namely, a negotiated settlement. First and foremost, mediation is a process by which people attempt to resolve their disputes by agreement. Important secondary goals may include improving communication and reducing tension between the disputants.
A mediated agreement should be reduced to writing and executed in accordance with established legal requirements. Mediators without legal expertise tread on dangerous ground if they assume the responsibility for drafting a formal settlement. They may even be accused of engaging in the unauthorized practice of law. The law of contract that regulates the validity and enforceability of agreements, and the statutes and family law doctrines that have an impact on contractual autonomy, are relatively complex. Although spousal agreements do not normally oust the jurisdiction of the courts over custody and access disputes, different considerations may apply to spousal support and property agreements. Consequently, many non-legally trained mediators prepare only a memorandum of understanding for submission to the lawyers for each party. This memorandum identifies the areas of consensus reached by the disputants and may be expressly declared as not legally binding on the parties until a formal contract has been executed.
When parties talk about "a fair settlement," they usually mean a workable agreement that meets their subjective needs. Of course, the parties’ own sense of what is fair may not be consistent with standards applied by third
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parties called in to assist them. When mediators talk about the fairness of the final settlement, they may mean any one or more of the following:
· "not unconscionable" (i.e., no undue influence or duress);
· "not disproportionate";
· "workable," "legally fair" (i.e., in line with decided cases and applicable statute law);
· "objectively fair" (i.e., meets actual as opposed to perceived needs); or
· "meets each party’s sense of what is fair."
An American commentator has concluded that the mediator’s duty is to facilitate an agreement "that (1) meets the participants’ own senses of fairness; (2) does not violate minimal societal notions of fairness between persons who make agreements; and (3) does not violate minimal standards of fairness towards unrepresented third parties."38
Various techniques exist to enable mediators to effectively redress imbalances of power. Screening for domestic abuse is usually a prelude to mediation.39If an imbalance of power cannot be redressed and an uninformed or intimidated party may be induced to agree to an unrealistic or unfair settlement, the mediator should consider terminating the negotiations. Where an imbalance of power will lead to an improvident result, mediation is inappropriate. In some disputes, inequalities of bargaining power between spouses may be more satisfactorily handled by the legal process.
Clearly, mediation is not suitable for all persons.40Many mediators contend that mediation is inappropriate when either of the parties is physically violent, addicted to alcohol or drugs, or cannot face the reality of the death of the marriage. People with a "winner-take-all" mentality are not likely to benefit from mediation, which requires an attitude of "give and take" and compromise.
Full disclosure is a prerequisite to effective mediation. A frank exchange of information concerning income and assets is essential to the mediation of support and property disputes on marriage breakdown.
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Mediators stress the advisability of predetermining what can or cannot be disclosed to third parties, including lawyers and the courts, during or following an ongoing mediation process. The parties are free to select "open" or "closed" mediation. Open mediation signifies that the parties waive their rights to confidentiality. Closed mediation implies that confidentiality is critical and that neither the parties nor the mediator will be permitted to give evidence in any subsequent litigation as to what transpired during mediation.
There is a difference between using third parties, such as lawyers and accountants, for information purposes and involving third parties, such as live-ins or in-laws, as active participants in the mediation process. At an early stage, it is important for the mediator and the...
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