Mediation

Link to Information on Family Law Mediation

What Exactly is Mediation?  

Mediation is a cooperative process in which a neutral facilitator assists people in working out their own resolution to a dispute. The mediator is not a judge, does not make judgments about who is right or wrong, does not take sides and does not decide how the dispute should be resolved. The mediator helps the participants reach their own voluntary agreements and assures that no one makes an agreement that is not satisfactory to him/her. Any participant can decide to end the mediation process without reaching an agreement and the mediator has an obligation to end the process if it becomes clear that a fair outcome cannot be reached in the mediation. Mediation is about resolving disputes in ways that satisfy and feel fair to everyone. It is an appropriate dispute resolution process when all participants seek a fair outcome, even though, at first, they may strongly disagree about what a fair outcome would consist of.  

Why Mediate?  

Avoiding Pain by seeking Peaceful Resolution. Most people who have been participants in the adversarial litigation process know that it is painfully slow, painfully inefficient, painfully expensive and painfully painful. In most cases, mediation offers substantial savings in time and money and provides a peaceful and cooperative alternative to the “fanning of the flames” that typically comes with preparing for a court battle.  

Preserve Relationships. Most disputes occur between people who know each other and have ongoing relationships – family, church, workplace, etc, so there is more at stake than the subject matter of the dispute. Even strangers in a dispute may be members of the same community and may cross paths again. Or they may simply both be members of the “human community,” in which peaceful relations create peaceful nations.  

Empowerment and Self Determination. With the right kind of help, most people – even people who are in a dispute – can work out smarter and better resolutions than their attorneys can (each of whom usually understands only their own clients’ version of the facts.) In court, judges and juries know only what the lawyers and witnesses tell them, and highly complex rules of evidence severely limit the information that can come into court for their consideration. Most people would prefer to keep their decision-making power, rather than give it away to strangers.  

The Opportunity to be Heard. Often people believe that court will give them the opportunity to tell their stories, to be heard. Some studies have shown that being heard is the greatest value for people involved in the legal system, that even if they don’t win, their experience of the process is positive if they feel they’ve told their story. In court, the rules of evidence restrict what parts of your story you can tell. If part of your story is not legally relevant, then you don’t get to tell it, no matter how important it seems to you. In mediation, you can tell your story, share what is important to you, let the other person know how this conflict is impacting you, and be more fully heard than you might in court.  

Save Time and Money. The traditional, adversarial, attorney vs. attorney approach to marital separation is costly and inefficient. In a litigated case, there are often long delays caused by the court calendar or waiting for the other side to respond to requests for documents and information. Legal costs are a function of the amount of attorney time required. In litigation, the fact-finding process of locating and valuing property often takes many hours of attorney time....on each side. In mediation, that information is voluntarily exchanged. Typically, a contested custody case or a case involving substantial assets may cost as much as $25,000 (per attorney) and sometimes even more. Mediated resolutions typically cost about one-tenth as much as settlements negotiated through the litigation process and about one-twentieth as much as a case that requires a court trial.

Why Mediated Agreements Last – Ownership. When a judge issues an order, there is a winner and a loser. As many who've experienced a trial know, sometimes both sides  feel like they've lost. Even the winner may not feel satisfied with the outcome. When attorneys negotiate a settlement, they each tend to push (or even “hammer”) their respective clients toward a compromise. The clients make decisions to “cut their losses” and settle for “the best I’m going to get.” In the end, they both commonly feel like they have settled for something less than fair, that they’ve  bought into something that wasn’t really “their agreement.” Often that sets the stage for an appeal or another lawsuit. The vast majority of mediated outcomes settle the dispute once and for all, because it is truly “their agreement.” A goal of mediation is that everyone feels satisfied with the outcome.

Creative Problem-Solving. In court, judges are limited in the relief they can grant. They can make monetary awards, stop future actions, punish past transgressions, etc. Sometimes that isn’t enough. Sometimes the court remedies don’t get to the heart of the matter. In mediation, the participants are free to agree to creative, “outside the box” resolutions that will best solve their problem and address what the true, underlying issues are. Their solutions need not be limited to the narrow range of solutions that a judge could legally impose.  

What Does the Mediator Provide?  

Safety. The mediator establishes and maintains “safe space” in which to agree or disagree, openly and honestly – a place where no one will be harmed, physically or emotionally. All participants are allowed to speak their true thoughts and feelings, whatever those may be. The mediator is the “guardian of the persons” and the “guardian of the process.” The mediator establishes and maintains ground rules for safe conduct and safe communication.

Structure. The mediation process provides an effective structure for doing the work of working out mutually satisfactory agreements. Using the process simply works.  

Constructive and Productive Communication. The mediator helps the participants speak to each other in ways they have not been able to speak to each other before, and listen to each other in ways they have not been able to listen to each other before. The mediator coaches and guides the conversation. The mediator may also coach the individuals in communicating productively to reach agreements, in individual sessions with each. In mediation, the participants learn new and improved skills for communicating and resolving conflict more effectively. These skills help improve relationships with family and friends and improve the quality of their work life.  

Power Balancing. In many if not most disputes, one participant has stronger negotiating skills than the other, or a more forceful personality, leaving the other participant potentially at a disadvantage. (Often, each participant feels that the other is the more powerful one.) In either case, the mediator’s skills in assessing and re-balancing differences in power help to assure a fair and satisfying outcome.

Reality Check. Once the participants reach agreements, the mediator has a valuable service to provide as a “reality tester.” Out of their desire to settle their differences (“get it over with”), participants sometime make agreements that are not realistic. They may be unable to honor their agreements, or they may regret and resent their agreements. So the mediator must probe and ask the “hard questions,” to make sure the agreements are mutually satisfactory, workable and will therefore be likely to be followed.

Human Hearts Connecting with Human Hearts. In truth, all of the above-described elements of mediation are really only the tools or “pieces of the puzzle” that a mediator uses to help humans connect or re-connect with each other – heart to heart. Conflict often leads to a feeling of separation. The ‘other’ is seen as an adversary, an enemy. When the mediation participants are able to let down their defenses, connect authentically, listen to, understand and empathize with each other’s concerns, they no longer see each other as evil, as monsters, or as liars, thieves or cheats. Once that has been accomplished, the details of the needed agreements seem to fall into place fairly easily.

A Few More Words About Mediation Styles or Methods

Mediators commonly describe their style or method as falling somewhere on a spectrum from evaluative to facilitative, to transformative mediation:  

The evaluative style is most common among “mainstream” attorney-mediators, who evaluate and take positions on the issues and advocate for them, working to obtain agreement from the parties. This style is believed to be appropriate when the relationship between the parties may not be important to them, as in an insurance claim or other commercial transactions where the parties have had no relationship outside the incident in question and they anticipate no relationship in the future.  

The facilitative mediator takes no positions on the issues, and is primarily concerned with creating a process that will help the parties generate the agreements they need. When the parties consider their relationship important, the facilitative style is usually preferred.  

In transformative mediation, we look at how the dispute presents the parties with a singular and unique opportunity to reflect, grow and learn about themselves through the process of resolving conflict. This approach is also relationship-focused (disputes are always relational), but mediation participants are encouraged and assisted in looking within to discover and heal the emotional injuries that have manifested themselves in the dispute and the troubled relationship, as the recognition and healing of such injuries can provide the path for the resolution of the dispute as well as the healing of the relationship. The healing of the emotional injury may then be recognized as “the gift” and “the lesson” of the dispute – ultimately for their highest good of the individual. This approach is hybrid of conflict resolution and personal growth work. Often, after a transformative mediation, both parties will express their gratitude that they had the conflict.

At Healers of Conflicts Law & Conflict Resolution Center, our philosophical leaning is toward the facilitative and transformative side of the spectrum, but our attorney-mediators are trained in the skills of the full spectrum of mediation methodologies and we use that breadth of training and skills to design the process that will best meet the needs of our clients and the situations with which they seek our assistance.

In most mediations between spouses or domestic partners, we use a co-mediation team of a male mediator and a female mediator. There are many advantages to having a pair of mediators working with a couple. Here are a few of them:

- Gender balance
- Opportunity for individual "conflict coaching" sessions with mediator of the same sex
- More likely that parties will perceive the mediators to be impartial
- One mediator can be the "active mediator," focused on facilitating the dialogue, while the other mediator pays more attention to body language, what isn't said, and other important cues the active mediator might have missed
- Two heads (and hearts) are better than one

Co-mediation is the favored approach for working with couples, among many thousands of family mediators. To the best of our knowledge, we are the only family mediators in the Asheville area who offer co-mediation for couples.

There is no additional charge for co-mediation at Healers of Conflicts Law & Conflict Resolution Center.
 

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Healers of Conflicts Law & Conflict Resolution Center
Mail to: P.O. Box 306, Asheville, North Carolina 28802 * Telephone: 828-253-3355 
jkimwright@healersofconflicts.com