Mediation

Mediation Methods and Red Flags

Your mediator has certain skills and methods he or she may use in mediation. Becoming familiar with these will help you feel more comfortable with the process.

  • Rephrasing. You may find that your mediator often takes what you or your spouse says and rephrases it or repeats it after prefacing it with something like, “So what I hear you saying is . . .” or “What you want Jim to know is …” The purpose is to help each of you feel as if you have been heard and to clarify your point of view or a suggestion for consideration. Your mediator may also encourage you to rephrase things by asking questions such as, “Help me understand . . .” or “Tell me more about . . .” or “Can you explain what is important about this to you . . .”
  • Redirecting. If you aren’t being productive or if you’ve run up against a brick wall, your mediator may steer you toward another topic. Sometimes simply moving away from a difficult topic will give you the space you need so that when you come back to it, you will be able to see it with fresh eyes.
  • Caucusing. Your mediator may decide to meet separately with you and with your spouse, or with your child, if you consent. Sometimes people are more likely to open up about what they want or what is bothering them when they are alone with the mediator. If caucusing is used, be sure that you have an agreement about whether things discussed in the caucuses will be private or shared with the other spouse. (Note that this is different from shuttle mediation, in which the parties stay in separate rooms the entire time. A caucus is a short one-on-one session that is held only when there is a need for it.)

    Mediation Methods

  • Turn taking. Your mediator will have you take turns expressing your opinions, thoughts, emotions, and suggestions. In normal conversation people often jump in and interrupt each other, but in mediation your mediator will encourage you to hear each other out completely before responding.
  • Information offering. Your mediator will spend a lot of time talking with you about laws and legal requirements. Your mediator is an important source of information and interpretation and will be able to present you with some possible unbiased solutions to consider. Note this is not the same as giving you personal legal advice.
  • Organizing. One of your mediator’s jobs is to help you get a grip on your financial situation. Your mediator will help you put together a complete budget and financial picture. This requires your active cooperation. It is important to be patient and wait for the mediator to cover all the important aspects, which can take some time. Your mediator will also help you organize a parenting schedule and property distribution.
  • Outsourcing. Your mediator may find it necessary to bring another professional into your mediation. Accountants, pension experts, business valuators, and child psychologists or counselors can help you understand complicated situations, facts, or processes.
  • Background discussions. Your mediator may wish to get into the background behind some of your problems or issues. If, for example, you and your spouse are disagreeing about the parenting plan and many of your problems go back to a certain incident where one parent did not provide proper care, it may be necessary for your mediator to explore that past history with you, to help you work through it or base your decisions upon it in a rational way.
  • Allowing healthy anger. The mediation process is very emotional, and it is not the goal of your mediator to slap a lid on your feelings. Rather, he or she wants you to express your feelings in a useful way. It is fine to be angry, hurt, sad, or scared. But it is important in mediation that these emotions are expressed in a way that furthers the process. Instead of using your emotions to hurt each other, you should use them to explain things and make reasons clear. Your mediator should be adept in helping you do so.
  • Turning to the future. Your mediator will encourage you to focus on the present and the future. You are in mediation to make decisions that affect you today and tomorrow, not to try to resolve past issues. Sometimes it is necessary to explain things that have happened in the past (see Background discussions bullet earlier in this section), but generally your focus will be directed forward. Your mediator may gently redirect you by saying things like, “I understand how you feel about what happened, but how would you like it to be arranged in the future?” or “Let’s think about what you can do to avoid those problems in the future.”
  • Questioning. The mediator is not there to find answers for you but to help you find them yourselves. In order to do this effectively, the mediator will often ask you questions and/or turn some things you say into questions. If you say that you have to have the pool table, your mediator may ask why. If you take one position and your spouse takes another, the mediator may ask you what other possible solutions other people might find. This questioning is designed to get you to think about your reasons for things and to stay open to innovative solutions you might not have thought of.

Red Flags

If you encounter any of the following situations, you should consider seeking another mediator:

  • The mediator says he or she will handle the mediation and also the divorce court process. A mediator should not handle the divorce court process, even if the mediator is an attorney. Doing so would mean the mediator represents both of you as an attorney, and attorneys should only represent one spouse in a divorce case. The mediator’s role should be solely that of mediator.
  • The mediator does not recommend that you and your spouse retain separate attorneys. It is very important that you and your spouse hire separate attorneys. These attorneys will be able to tell you potential outcomes in court, give you personal legal advice, act as sounding boards throughout the process, and review and possibly prepare the final documents that will be filed with the court. The choice to hire attorneys is yours, but a mediator should always recommend that you hire them. You cannot hire the same attorney to represent you both since that would be a conflict of interest.
  • The mediator develops a personal interest in one of you. If your mediator regularly sees one of you socially or your mediator has or develops a personal relationship with one of you, this is a sign that he or she is not acting impartially.
  • The mediator talks to you or your spouse separately about issues in the case without establishing a clear policy about these separate conversations (which are called caucuses). Caucusing can be an effective tool during the mediation process, but only if the mediator and the parties have a clear agreement about it. The parties must agree that either everything they talk about with the mediator in a caucus will be disclosed to the other person or nothing discussed in any caucuses can be disclosed to the other party.
  • The mediator takes sides, tries to push you into certain solutions, or is biased in some way. The mediator should be completely impartial and never take a side during mediation. He or she must be very careful never to point out that one spouse is wrong, to suggest that one solution is better, or to say what he or she would do in your situation.
  • The mediator does not intervene when you argue extensively or does not provide you with direction. The mediator must act as the captain of the ship, keeping you both on course and focused. There will definitely be times when tempers flare or you feel like you’re stuck. It is the mediator’s job to keep things moving forward and get you back on track.