Three Approaches to Divorce Mediation by Eli J. George, Jr. Couples who choose to divorce usually resolve their differences in mediation. Many of these couples have lawyers and attend mediation with their lawyers at various stages during the litigation process. However, an increasing number of couples attend mediation without lawyers, before any divorce papers have been filed. Many of these couples consult with lawyers for advice during the mediation process. When lawyers are involved before the mediator is chosen, the lawyers usually choose the mediator. The couple they represent may have only a general knowledge of mediation and probably knows little if anything about the mediator or his/her approach to mediation. This article is about the various approaches to divorce mediation. It also contains my own observations and subjective comments. The Kentucky Supreme Court recognizes three distinct approaches to mediation, evaluative mediation, facilitative mediation, and transformative mediation. EVALUATIVE MEDIATION Evaluative mediation is modeled after settlement conferences held by judges. The evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of their case. An evaluative mediator may offer opinions to the parties as to the outcome of the issues if litigated in court. The evaluative mediator is more concerned with the legal rights of the parties, rather than the parties needs and interests, and evaluation is based on legal concepts of fairness. The evaluative mediator meets most often in separate meetings with the parties and their attorneys, practicing shuttle diplomacy. He/She helps the parties and their attorneys evaluate their legal position and the costs versus the benefits of settling in mediation rather than pursuing litigation. The evaluative mediator structures the process and directly influences the outcome of mediation. * Lawyers generally prefer evaluative mediation because the mediation revolves around the law, legal concepts of what is fair, and the legal strengths and weaknesses of each side of the case. Lawyers are comfortable in this arena because they are able to control the process, and use their legal knowledge and negotiating skills to help their clients. The process is lawyer centered. In evaluative mediation the mediator makes a brief opening statement about mediation in the presence of the lawyers and their clients. The lawyers then make brief statements outlining their clients positions. Usually after the opening statements the parties along with their lawyers move to separate rooms. The mediator then shuttles back and forth from one party and her lawyer to the other party and his lawyer trying to coax both sides to compromise their positions and sign an agreement.
In evaluative mediation the parties do not usually speak directly with each other about what is important to them, and sometimes what is important to them is unimportant to the lawyers and to the mediator because it is not legally relevant. The mediator functions as a messenger in what I regard as an unsympathetic, sometimes exhaustive and hard-ball approach to resolution of family issues. Some mediators are quite effective at hammering home a settlement. Although this approach may work for some couples it is certainly not appropriate for others. It is not my style. When lawyers bring me mediations I usually resist the evaluative mediation process and try to keep the lawyers and their clients in the same room for as long as possible to give the parties at least some opportunity to speak with one another about the issues. Interestingly, as the parties become more informed, empowered, and comfortable in this environment some lawyers become less certain of their role and consequently, more uncomfortable. There are, of course, many other lawyers who are genuinely pleased with their newly empowered clients. They are satisfied to steer them in the right direction and intervene only if they are about to veer off course. FACILITATIVE MEDIATION The facilitative mediator structures a process to assist the parties in reaching a mutually agreeable outcome. The mediator asks questions; validates and normalizes parties points of view; searches for interests underneath the positions taken by the parties; and assists the parties in finding and analyzing options for resolution. The facilitative mediator does not make recommendations to the parties, give his or her own advice or opinion as to the outcomes of the case, or predict what a court would do in the case. The mediator is in charge of the process, while the parties are in charge of the outcome. Facilitative mediators want to ensure that parties come to agreements based on information and understanding. They hold joint sessions with all parties present so that the parties can hear each other s points of view, and hold confidential sessions with individual parties. They want the parties to have the major influence on decisions made.* When a couple voluntarily chooses mediation instead of litigation they do so because they have at least some semblance of a working relationship, otherwise they would not have agreed to come together. The key to good mediation is to encourage that relationship as the parties approach difficult and sensitive issues. The mediator must understand the clients and carefully manage communication between them. More often than not divorce litigation is the product of anger and/or fear, and failure to communicate, all of which is further exacerbated during the litigation process when communication is managed not by the parties but by their lawyers. During litigation, communication is usually from one spouse to his/her attorney, then to the other attorney and the other spouse. When the communication is finally received it is frequently not what was intended, despite the good intentions of the parties and their lawyers. A failure to communicate correctly results in conflict and litigation, plain and simple.
Facilitative mediation gives the parties an opportunity to speak directly to one another. For this approach to work the mediator must carefully manage the conversation, impart knowledge and earn the confidence of the parties, usually in that order. Productive conversation is more likely to happen in an informal environment. My office is in a nicely renovated and landscaped house in the Highlands and is warmly decorated; a sharp contrast from the concrete, glass and marble in the city. During my first meeting with the clients, I keep the conversation informal and watch the parties interact as I get some historical perspective, a handle on what issues will need to be resolved, and how best to approach sensitive issues. I always give each party an opportunity to speak, try to keep the conversation constructive, and I make sure that the other is listening, not just waiting to speak. I frequently capsulate and repeat what I think I ve heard each of them say so that we all know we understand each other. I watch for any sign that either of the parties may be in a weak bargaining position. We talk generally about how the mediation process will work, custody and parenting, maintenance and child support, and the kind of financial information we will need to discuss the issues intelligently. Such information might include tax returns, business valuations, real and/or personal property appraisals, etc. I suggest to the parties that they not approach the issues piecemeal, that it is best to wait until all the financial information is gathered and approach the issues collectively. I try not to interrupt the conversation by stopping to take written notes, but instead make mental notes of difficult issues which may present obstacles to a peaceful divorce. I reserve note taking for a later time. We also talk about lawyers and how and when they should fit into the mediation process. I assure the parties that they will have as much time as they need to consult with their lawyers before they make a decision. Client-centered mediation is not designed to eliminate lawyers whose opinions may be necessary for an intelligent resolution of disputes. It is designed to empower and enable the clients and to prevent the divorce from spiraling out of control. I enjoy working with creative lawyers when we work together to resolve difficult family issues in a peaceful way. Gathering the facts and financial information to intelligently discuss the issues may take a short or long period of time depending upon the nature and extent of the information required. Throughout the information gathering process, I am careful to explain exactly what information is necessary and why it is important legally. For example, when a couple is deciding how to allocate investments between them, the tax basis of the property transferred is important. Although there is no tax on the transfer of property between spouses, the spouse receiving the property will have to pay taxes on any gain in the investment when the property is sold after the divorce. Another common example of educating the couple involves explaining how to identify, trace and value non-marital property.
After we are all satisfied that we have what we need to discuss settlement, we tailor a specific approach to mediation that will work best for the parties. Some couples prefer face-to-face mediation in the presence of the mediator. Others may want to move to separate rooms in the mediator s office for private conversations about proposals to make or consider. Still others may want days or even weeks to speak with their advisors and attorneys and reflect upon the various proposals before deciding on a course of action. The mediator must understand when each process will be effective for each couple. In any such event the proposals are passed from one party to the other by a mediator who is absolutely neutral and committed to helping the parties divorce peacefully. The laws governing divorce, parenting, division of property, maintenance, and child support were designed by lawmakers to give judges leeway to decide what is fair. And although most couples don t know what the law says, they do have their own sense of what is fair, which is frequently not that different from how judges would apply the law. Although I guard my own subjective beliefs about fairness, I do share my knowledge and experiences in family law. And after 42 years and perhaps 2000 litigated and mediated divorces, I am both qualified and authorized by Supreme Court rules to tell a couple how their notions of what is fair compare with my own knowledge and experience. I learned long ago that it was useless to try to influence my clients before I earned their confidence and trust. If I do earn the confidence and trust of my clients I know that exercising my ability to influence them carries with it the heavy burden of trying to be fair when fairness is subjective and absolute fairness is only theoretical. When the parties are called upon to make decisions I remind them that there is no single perfect justice. The judges who decide cases have a wide range of discretion and they frequently decide different cases with similar fact situations very differently, because of their own different life experiences. The greatest challenge in any mediation is to understand, address, and hopefully eliminate the resistance or barriers to compromise. Preparing the paperwork necessary to legalize the divorce is not usually difficult for the experienced practitioner. The paperwork generally includes a Petition for Dissolution of Marriage, Marital Settlement Agreement, and Decree of Dissolution of Marriage. The paperwork might also include Qualified Domestic Relations Orders to divide retirement benefits, Quitclaim Deeds to transfer interest in real estate, vehicle transfers, bills of sale, constructive trusts related to unexercised and non-transferable stock options, and more. When the parties do reach an agreement the mediator puts it in writing and offers it to the parties for their consideration and private review with their advisors before it is signed. It is not necessary for either party to go to Court to finalize the divorce. TRANSFORMATIVE MEDIATION Transformative mediation is based on the values of empowerment and recognition. The potential for transformative mediation is that any or all parties, or their relationships, may be transformed during the mediation. In these ways, the values of transformative mediation
mirror those of facilitative mediation. In transformative mediation, the parties structure the process, with the mediator following their lead, and individual caucus sessions are rarely used.* In my own practice there is little, if any, distinction between facilitative and transformative mediation. I usually structure the mediation process with input from the parties and we all agree on an approach. And while in a perfect world all sessions would be joint sessions, as practical matter it is not always appropriate. Conclusion Although the Kentucky Supreme Court recognizes three distinct approaches to mediation, as a practical matter there are many subtle variations to each approach. The skilled mediator must understand the parties, their personalities and needs, and the role lawyers will play in the mediation process, and then tailor the approach to mediation which will work best for each couple. And even this tailored approach must be subject to modification depending upon the circumstances and moods of the parties. For the couple with children who must maintain a parenting relationship after the divorce, facilitative mediation improves the opportunity for meaningful communication. When communication is meaningful the likelihood of cooperation improves the chance that a couple will search together unselfishly for a parenting plan that works best for their children. Eli J. George, Jr. is an attorney/mediator with Smart Resolutions, 1907 Bardstown Road, Louisville Kentucky 40205. He may be reached at (502)458-1953 or www.smartresolutions.com. * Supreme Court of Kentucky: Amendment to the Rules of Administration Procedure AP Part XII. Mediation Guidelines for Court of Justice Mediators.