Is that Really Divorce Mediation?

I’m going to admit right up front that what I’m about to say will probably irritate, upset, and possibly even anger some Phoenix divorce attorneys and mediators. They will likely disagree with me. But my point here is to ruffle some feathers in the hope of starting a meaningful discourse on how we think about and approach conflict resolution. You see, I think it’s time for a change for the sake of divorcing couples.

It is my opinion that what most Phoenix divorce attorneys and mediators are calling “mediation” here in Arizona is not really mediation (and calling it evaluative mediation does not change my opinion). Instead, they are simply giving a sexy name to settlement negotiations, which I believe are a completely separate beast. Settlement negotiations involve attorneys and litigants and, often, a neutral facilitator. Settlement negotiations are frequently effective because the parties engage in a financial risk/benefit analysis and, ultimately, figure it’s cheaper to settle than to litigate. Settlement negotiations rarely result in two happy parties. This is all fine and an inherent part of our legal system and can lead to many effective settlement agreements. However, I challenge that this is not really mediation!

Mediation is an approach that empowers people. It is a process where everyone can feel heard and understood. Real mediation culminates in agreements that are both comfortable and satisfying. It does not involve attorneys in the actual mediation sessions. Blasphemy, you divorce attorneys may say!

Yes, I’ve heard it from many divorce attorneys, but I’m sticking to my guns. Call me a purist – or something else. If one researches the true origins of mediation, it is derived from client-center psychology principles – not legal treatises. It is about providing the appropriate environment so that the individuals involved are able to come to their own creative solutions, which are usually much more satisfying and enduring. There is no “judgment,” pun intended, in mediation.

So, I posit that “success” in the dispute resolution world is not simply where the parties have reached full agreement; but rather where all the individuals involved have reached a full agreement and actually feel pretty darn satisfied with the agreement.

This can be accomplished by taking the divorce mediation session out of the litigation arena for a few hours and just allowing the divorce mediator to spend some private time with divorcing couples – either in the same or separate rooms. It is amazing what people are willing to offer and concede when their attorneys are not present. And, nothing is binding! Because they are not represented in the mediation session, they do not sign anything. They are encouraged to sleep on it, mull it over, discuss it with their attorneys, discuss it with their friends, write in their diaries….er blogs (oops, just dated myself) and basically to feel no pressure to make any binding decisions until they are comfortable. Not surprisingly, this seems to produce much more durable and, I’ll say it again, satisfying, agreements than requiring parties to sign agreements the same day they are reached.

Therefore, I challenge divorce attorneys to try it, once, and then interview their clients about how they actually “feel” about the outcome – all of the parties, not just their client. Then decide. Attorneys, feel free to call or email me to disagree, discuss or have a “eureka” moment. I promise, I’ll validate your feelings!