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Best Practice Tips for Mediation: What I Have Learned in Ten Years of Practice

May 26, 2018 | Articles, News

By: Ellen Barron Feldman

Reflecting on the last ten years of mediating pre-decree and post-decree divorces, and preparing for a presentation my partner and I are giving in a few weeks, has given me the opportunity to think about what I have learned and how I can change my attitude going forward.  While I now have the confidence to know that when a couple cannot successfully mediate their divorce, it does not mean that we have done anything wrong, I hope my experience can guide us going forward and that others can benefit from what I have learned.

First, always keep an open mind.  Do not judge clients or their behavior.  For some clients, we complete the mediation process and never know what brought them to divorce. They are making agreements, talking to each other, are on the same page with their children, do their homework in between mediation sessions and are able to decide all the issues.  For others, we know which spouse cheated on the other, or gambled away all the money or was a workaholic and ignored the spouse and children.  For better or worse, what brought them to decide to divorce is irrelevant.  Mediation is forward-focused.  While the past may be relevant when the couple is stuck on an issue, or one person seems unnecessarily upset about something, it should not play into the mediation process or the agreements they reach. Mediation is about improved communication going forward and learning to speak to each other in a different way so that they can do so.

Second, appearing neutral, even if you may not be, is often a challenge. My role as a mediator is to be neutral regardless of the facts, behavior or attitude of the couple.  It is my job to keep them on the same page and moving forward to tackle issues and make agreements.  It is not for me to let them know that I do not approve of the spouse who cheated or was never home and now wants to be a model parent when it comes time to make a parenting schedule. I need to remain even-keeled and balanced regardless of the way the clients present.

Third, in our effort to remain neutral, yet balance the playing field if one spouse is being more forceful or overpowering the other, we may be viewed as taking sides.  One spouse may be more familiar with the finances while the other is more savvy about the children, their teachers and favorite foods, and how they perform on the soccer field.  We need to balance facts, emotions, power plays and facilitate agreements on issues required to be resolved before the couple can get divorced. In that effort, one spouse may think we are siding with the other, rather than seeing his or her own role or behavior which requires us to boost up the other spouse. It is sometimes tricky to maintain that balance without taking the other person’s side.

Our efforts to balance the emotions and balance things out in the mediation may result in the bullying or stronger spouse thinking that we are siding with the other. Simply stated, our efforts to remain neutral may result in the more powerful spouse feeling that we are siding with his or her spouse. Our good intentions may backfire.

Whatever the issues, the mere fact that a couple comes to mediation voluntarily, or even makes progress when ordered to mediate by a judge or sent by attorneys, is a positive step which allows us to facilitate agreements, help them find new ways to communicate and provide an opportunity to improve the relationship between the spouses as we want them to continue to be good parents for their children.  For me, our clients remaining positive co-parents is the most important reason to mediate.