The Debate: The Mediator’s Role in Avoiding Future Litigation/Mediation
What is a mediator’s role in family and divorce mediation?
Is it to be a silent observer until called upon for assistance? Is it to only bring up a narrow set of standard issues to discuss, and then allow the participants to explore these areas? Is it to avoid areas of possible high relevance only because the participants never approached an unforeseen (to them) issue?
Believe it or not, there are many ways to mediate. Not all mediators agree on how to conduct mediations, nor how involved they as mediators should be in the problem-solving process.
One area of large debate is the role of mediators when it comes to bringing up issues for clients to discuss. Do mediators have a responsibility to navigate discussion proactively, attempting to cover various issues so clients do not end up in future litigation or mediation?
The active mediator who provides topics of possible relevance: These mediators believe it is their job to integrate their practice experience when facilitating mediations. No, this is not providing legal advice nor recommending a course of action. Instead, it is presenting possible issues to the participants, allowing the participants to dive deeper into what they determine as relevant for their own lives. This style works well for couples who want to get in the nitty gritty details and work proactively. These couples usually want to avoid the usual 1, 2 or 3 year court visit that is far too common for co-parents. Instead, these co-parents seek to find common ground now in an effort to avoid future headaches and additional court expenses later.
The “It is not my job to avoid future issues” stance: These mediators believe it is not their job to mention issues that could be of relevance but were not brought up by the participants. Let us say the clients’ child is 3 years old. These mediators will often deal with the here and now, but will not mention possible relevant future issues (or sometimes near future issues!). Instead, what tends to occur is a bare bones mediation, resulting in a bare bones agreement. These mediators believe their job is more or less to be a presence in the room called to action only when the co-parents or spouses approach a speed bump. Or, their job is to stick to the basics and only veer off when clients bring up novel issues themselves.
Of course, as is true with all artforms (and yes, mediation is an artform!), there are shades between these two options. You may have a mediator who finds themselves somewhere in the middle.
Who is your mediator?
Learning how your mediator mediates is a critical component in selecting a mediator who aligns with both of your unique personalities and needs. Do not be afraid to directly ask your mediator about their primary mediation approach. Consider interviewing other mediators if you feel a mediator is not a good fit.
In Conclusion
While it may not be the mediator’s job to facilitate a mediation that will entertain all future issues, it sure seems mediators have a responsibility to do their best in navigating their clients toward meaningful, purposeful, and fruitful negotiation.
