This article is not designed to teach anything to family mediators. If they are worth their salt, they'll know all of this.

This is for the newbie or wannabe individual living through a separation and wishing to resolve a dispute with their ex without paying a fortune in legal fees and without that bitter taste that litigation inevitably leaves to all but the psychopath ... and the $350/hour lawyers.

Mediation is a form of alternative dispute resolution (ADR). It differs from arbitration in that presiding officer (called a mediator) cannot impose a resolution.

In all mediation, the mediator's job is to coach or coax the participants into resolving their dispute; and once an agreement achieved, to hurry the participants into framing that resolution into a written agreement between them.

Family mediation is the reference of one or more family law issues to an open conference presided by an independent third party who either coaches or coaxes the separating spouses to resolve a disagreement or a conflict by way of a fair and viable agreement on all or some of the outstanding family law issues.

Beware Litigation

Family Mediation Rocks badgeIn an increasing number of jurisdictions, mediation is a mandatory step before parties involved in a new family law dispute can trigger litigation.

Family law disputes are unique in that the lives and well-being of children are at stake even though they are not direct participants in the processes designed to resolve the devastation of their family.

Also, litigation is horribly expensive. Legal fees are by far the largest cost.

Far too often, lawyers involved in family litigation promote the adversarial system by, for example, fostering rudeness and contempt even between the lawyers. Careless as to the legacy of the family at issue, these types of lawyers multiply the cost and the pain of the aftermath.

Mandatory/Voluntary

With the removal of all family law disputes from the traditional court's jurisdiction not on the table, and with almost all jurisdictions loath to allow family disputes to be resolved by arbitration, the government has come up with an alternative: mandatory family mediation.

Voluntary family mediation has been around for years.

In fact, many family breakups are not resolved through the courts or even by mediation, the breaking-up spouses simply resolving the issues related to their separation between themselves. They sign nothing and file nothing with any court. They make their own law, change it between themselves when necessary, and they stay under the radar of the Courts.

In other cases, communication is a casualty of the separation and the separating spouses will ask an independent third party to help resolve some issues which they are unable to resolve themselves.

Sometimes, parties embroiled in horrible litigation suddenly come to their senses and adjourn the litigation to attempt to mediate.

This is a fairly rare occurrence for a number of reasons not the least of which is that litigation means lawyers who earn their living through litigation. It would not be human nature for litigation lawyers to be alive to mediation opportunities in the middle of trial.

But whether it is voluntary or mandatory, once engaged, family mediation is essentially the same.

It is a core feature of mediation that once started, it may be ended at any time by one of the spouses. A quick and sudden end to mediation would be appropriate where, for example, one of the spouses attempted to intimidate the other by being verbally abusive at mediation.

The Family Mediator

Mediationm binocularsThe first step in family mediation is to retain the mediator.

The parties will have to agree on payment of the mediator fees which, barring unusual circumstances, would typically be shared equally.

Then, the family mediator would have to be made aware of the circumstances of the family, of the spouses and property issues, and of the children.

But all that is window-dressing. It is the actual mediation where the potential magic occurs: a fair and viable separation agreement to live and to co-parent by, arrived at by the parties themselves (even if with the help of a third-party), all without the bitter taste of adversarial litigation.

Some mediators believe that their only function is to listen, rephrase things and, generally, prod and pat the participants on the shoulders.

Other mediators aggressively seek out an agreement.

And then, of course, there are all points in between.

All participants in mediation should explore the candidate-mediator's style with the candidate during the period of time that the mediator is selected - but before starting the mediation itself.

It is pointless and, in fact, counterproductive to convene mediation where there is no professional, directing enthusiasm and commitment towards a negotiated settlement. That is the value-added of mediation.

At the same time, it can be dangerous to have an overly-assertive mediator because in the result, the parties may end up with the mediators agreement and not their own - a recipe for disaster.

The Art of Mediation

Hence, the art of family mediation - yet the most important aspect of it.

Again, it is critical that the participants in forthcoming family mediation interview the mediator before it starts as to her or his style. Thus, there will be expectations and less surprises.

In my personal view, I believe there must be some value-added to mediation. The point of mediation is not a hug or handshake or to politely agree to disagree. Some mediators read book after book on "the law of mediation" and can spin off technical terms developed by some remote ADR academic think-tank.

But at the end of the day, you really can't teach it. A professional mediator either has the unique combination of knowledge, wisdom and intelligence to be a mediator, or they don't.

The point of mediation is to arrive at a negotiated agreement. A mediator has done her job when there is an agreement negotiated.

Conversely, though, a mediator has not necessarily failed when mediation fails because often one or both of the spouses insist on being unreasonable.

The art of family mediation is not losing the opportunity for settlement while recognizing that a viable settlement must essentially come from the parties themselves.

The Elusive Solution

In every dispute, there is a fair solution .... somewhere.

This is a fact. No dispute is without a fair solution, albeit not apparent to the parties.

Mediation puzzleLike an architect achieving balance and strength in the foundation of a building still on paper only, any good family law mediator should be able to find the fair solution in any dispute, or at least the pillars of it.

Once located, he or she should move it to completion, wrap it up, make sure the terms are translated into viable legal wording, but do it quickly - whatever it takes to allow the parties to leave with that agreement based on that fair solution.

Some mediators, all immersed in their theory of mediation and lovin' every minute of it, don't recognize that eureka moment and continue the mediation, letting the flame go out.

Or, having in hand a partial agreement in a complex file, upon which more can be built once the parties catch their breath, they go for the home run and end up losing what the parties had.

A good and engaged mediator - not necessarily the parties themselves - will know when to play 'em, and when to fold 'em.

In some cases, though it may not be possible, it remains the responsibility of the mediator to strive mightily to bring the parties to that promised land, to be the bright, clear Google Maps directions to Agreementville.

Problems, Documents and Confidentiality

Family mediation is not unique in that the participants are usually subject to a power imbalance. Rarely, if ever, are two people in a relationship perfectly balanced in terms of power or dominance. This is simply human nature.

Family mediation ought not to be prevented simply because there is a unequal power relationship between the spouses, although that imbalance may have to be managed by the mediator.

But family mediation ought to be prevented where one of the parties seeks to continually assert a power imbalance particularly by way of verbal or nonverbal intimidation. To one spouse, finger-tapping may be a historic precursor to violence, something not lost on the finger-tapper in mediation. It can be that subtle. I know. I've seen it.

Family mediation includes some standard administrative steps such as a full exchange of relevant documentation and an aggressive "get it done" schedule for the mediation meetings.

Mediation sessions are private and no other person is allowed in the room other than the mediator and the two spouses, unless the spouses agree otherwise.

In family mediation, emotions and feelings are always under the table, but honesty must be on the table. A good family law mediator will acknowledge the emotions and feelings but demand honesty and be alive to dishonesty and, in any event, keep the mediation focussed on the future, not the past.

Because of the emotional dynamic, mediation sessions are without prejudice which means that any documents or statements made at a mediation session, cannot be used to build a court case.

A good family law mediator will have to corral expressions of emotions and feelings. Too much may well derail the mediation. Disallowing or ignoring expressions of emotions and feelings may also prevent a spouse from getting through them and on to substantive issues.

Family mediation is a golden opportunity to gently resolve a separation and to provide a peaceful legacy for the children.

If that opportunity arises for you, don't waste it. Help yourself by staying alive to the pitfalls and opportuntites set out above.

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Acknowledgments:

I would like to thank my client EM for graciously agreeing to look over this article for me to ascertain if, as a recent past-participant in family mediation, the intelligence set out herein is commensurate with her personal and fruitful experience with family mediation.