The mediation process can take various forms. It is important for mediation parties, and those making referrals, to understand the mediator’s style and why it matters. I most frequently use the facilitative approach and will explain why I believe this process enables the parties to reach their best outcome.
I have an undergraduate degree in psychology and received my initial mediation training from John Haynes, a Psychologist often referred to as the Father of Mediation. I began my mediation work after learning the philosophies behind mediation and what elements of a process can best lead to a mediated settlement that the parties will be happy with and serve them over time.
I started mediating a few years before I attended law school. Soon thereafter, I obtained my law degree and began practicing as a family law attorney and Mediator. I am certified by the Virginia Supreme Court Office of Dispute Resolution, at the Advanced Family Level (which is the highest). As a certified mediator, I am required to inform mediation parties about my style of mediation at the outset. The reason behind this rule is so that parties are educated about the work of the mediator and the mediation process they are embarking upon.
If the parties can use the facilitative process, and sit in the same room with each other, they may not only reach a settlement, but they may achieve a settlement that maximizes each party’s respective interests (and their children’s interests). The mediator encourages the parties to express their interests (not positions) and brainstorm options that may meet most of the interests that are priorities for both of the parties.
The parties learn at the outset that the mediator is not judging them or deciding the issues. The mediator is not evaluating each party’s case and then formulating a recommendation based on what the mediator believes the court would do. Because the facilitative mediator does not judge, the parties feel free to explore ideas and be honest about their interests, instead of focusing on what the mediator might want to hear if that mediator was evaluating the party’s case/positions.
Further, in a facilitative process, the parties can consider various solutions that extend far beyond what the law dictates. Sometimes one, or both parties, do not agree that a resolution based on the law is fair for their case. The law can be an impediment to settlement. While the law can help the court to decide a case, it is a factor the parties can consider in a settlement, along with other factors that may help them reach agreement.
Facilitative mediation can lead to transformation in the parties. Some people are angry when they separate, continue to be angry after a settlement or trial, and the anger can remain for a very long time. Facilitative process provides a venue for each party to express their points of view, be heard by the other party, mutually problem solve, and feel invested in the outcome. Any settlement reached in the facilitative mediation process is more likely to be followed by the parties. In the event there is a need to revisit the settlement, the parties are more likely to return to a facilitative process to work through the modification.
I usually meet with the parties for 2-hour sessions with a week or two between sessions. I can provide legal information but not advice. I encourage each party have their own attorney to consult with (and I recommend attorneys who have a practice like mine who will support the mediation and understand the work we are doing). If a referring attorney, or a party, would like to have their attorney present for the mediation, the mediation can be structured accordingly.
I do not decide the issues or tell the couple what to do. I help them gather information, disclose financial information, identify what issues they need to work on in mediation, hear their interests, brainstorm options on the issues, reach a settlement agreement, and move forward with their lives. Some of these separating couples have processed their feelings before or during the mediation work and are able to better communicate with one another regarding their children or other.
This process enables them not just to reach a settlement but work through the legal, financial, emotional, and communications challenges. They are actively involved in settlement, are in control over the outcome and any agreement reached and are transforming their lives and the way they relate to one another. This process can lead to happier parties and healthier relationships in the future.