“Mediation is the art of recovery.”
(From “Family Court Mediation Training Program”)
Having practiced family law for over 40 years, I am now into my 6th year as a fulltime family court mediator and arbitrator, and I have determined that, on many levels, mediation has presented me with my greatest professional challenge. I’ll explain.
I retired from the family court bench at the end of December, 2008, and in January, 2009, I “transitioned” into my mediation practice, convinced that I had enough experience in this area immediately to become a natural-born mediator. I just knew I could settle every case by sheer force of will and experience. Wrong.
Mediation forced me – no, it required me – to become enmeshed with the feelings of the parties.
I understand all too well that the feelings of the parties who participate in the mediation process not only matter, but form the engine which drives the process forward. These feelings include (often all at the same moment in time) –
For the mediator, understanding and being constantly aware of, and attuned to, the nuances of the parties’ (and quite often their attorneys’) feelings which they bring to the mediation session are absolutely essential in lending towards a resolution of the case.
To the attorneys who are participating in the mediation let me please offer the following:
a. A mediation is not a family court hearing which is intended to be conducted (started and ended) within a finite period of time. Please don’t arrive leaving. Mediation should be a family law attorneys’ best friend.
b. I would urge every family law attorney who participates in mediation to remember these words: Mediation is a process which will have a point-of-beginning, but which will end when it is supposed to end.
c. Please give your mediator time to work with your clients to discover whether your client’s feelings continue to create a wall or barrier which prevents a reasoned and reasonable discussion affecting the resolution of his or her case. Your mediator will know, often instinctively, when it is time to try and break through this wall. In other words, cut the mediator some slack.
To the clients who are participating in the mediation:
a. You must trust your mediator to level the field for both sides. A mediator is a “neutral”…and you should both embrace and understand the significance of that term.
b. Your feelings matter to your mediator, but you also have an obligation to be both honest and candid with your mediator as to whether the feelings which you have brought to the mediation process make it impossible for you to make reasoned and reasonable compromises towards the resolution of your case.