by Laurie Israel, Esq.
As published on October 23, 2013 in Huffington Post.
Mediation is not one monolithic technique. Mediators and mediation theorists may categorize different types of mediation techniques into different theoretical boxes, such as “facilitative,” “evaluative” and “transformational.” But the categories all seem to bleed into each other.
At its core, mediation has as much variety as there are mediators, mediation clients and issues being mediated. Because of this variety and variability, mediation seems more like art than science, with unpredictable pathways through the process, and surprising results, if the mediator gives the clients space to evolve in their understanding of each other and the dispute.
There are various philosophies that swirl around mediation. One says that mediation is “client-directed.” Whatever the clients want, that’s what the mediator arranges in settling the clients’ agreement. The problem with client-directed mediation, is that the skills, background, and experience of the mediator are discounted and not taken advantage of by the clients.
This is true especially in an area such as divorce mediation or prenuptial agreement mediation, where the mediator (generally) has extensive knowledge of the operant law and the possibilities of resolution for each of the issues involved. There is no reason to expect a mediation client to be an expert in divorce law or the laws pertaining to prenuptial agreements. An understanding of these laws are important for the clients, and can enlighten and enrich the process of dealing with the practicalities inherent in
ending a marriage or formulating a prenuptial agreement.
But what about that mediation rule that mediators are not supposed to give legal “advice” during the course of a mediation, but can provide legal “information.” What is the difference between legal “advice” and legal “information”? That’s a slippery slope that all mediators deal with on a daily basis.
A mediator cannot pretend that he or she knows nothing about divorce law or the law of prenuptial agreements. That would be absurd, because many of the issues that the clients are addressing are legal ones, and certainly, the clients are not supposed to be experts in the law. So, legal information must be rendered by the mediator, at least initially, subject to input by the clients’ reviewing attorneys (if they have any).
What about the “elephant in the room” that sometimes comes up in mediation? This is the little but very important fact that is unsaid, but lingers in the background, infusing the entire mediation with an element of untruthfulness. That elephant may need to be acknowledged and discussed openly in order to have all the relevant information accessible to make a well thought-out agreement by the clients.
How, when (and should) the mediator bring up the “elephant in the room”? Some of these elephants are quite large and important. Not saying something reminds me of the Hans Christian Andersen tale “The Emperor’s New Clothes.” We as mediators frequently face this issue. Should the mediator say something when he or she sees something, even if the clients have not brought it up, like the message in the subway, “If you see something, say something.” Or should the mediator remain silent until (and unless) the clients bring it up?
Clients engage us as mediators for many reasons. Sometimes they simply view mediation as a money-saving way to resolve their dispute. At times they choose us because they are afraid that engaging attorneys will make their disagreements more difficult to resolve and may be detrimental to their ongoing relationship. They generally, carefully choose their mediator based on the mediator’s experience and background, and also their sense of whether the mediator’s personality and approach will be compatible to theirs.
Mediation clients don’t choose a computer program or a machine. They choose a real person, with intellect, his or her own background and experience, and knowledge of the operant law in their dispute or issue. How silent should the mediator be in the process? When should the mediator follow and when should the mediator lead? Should the mediator say the “truth” as he or she sees it when an issue comes up that the parties may not understand clearly? Or should the mediator remain silent?
The danger being a “truthsayer” when you’re a mediator, is that your “truth” (sometimes unbeknownst by you) may support or give the appearance of supporting the position or view of one or another of the clients. This can happen even if the connection between the “truth” said and a party’s position is quite attenuated, because mediation clients can sometimes be very fragile. As a result, the mediator becomes tainted with perception of bias or lack of neutrality. Usually, this immediately ends the success of the mediation. So being a mediator “truthsayer” can pose great risks to the process.
However, there are also strong benefits for saying the “truth” as you see it, at least sometimes. Mediators often try to appease both sides of the mediation. In doing so, the mediator can be perceived as untruthful, and both sides can lose respect for the mediator and the mediation process weakens. For this reason, a word of “truthfulness” by the mediator can have a powerful effect in mediation — perhaps leading to a resolution, even if it temporarily seems to support the position of one side rather than the other. Both sides can feel like there is a person in the room that can provide feedback that can help them resolve their dispute.
The mediator’s truthfulness should always be balanced with a demonstration of support and respect for other mediation client and should include an explanation of why the mediator sees the issue that way. It’s dangerous, but can move things strongly forward.
If it’s done in a non-threatening way, the other party will also have a chance to express and clarify his or her view. As a result, greater mutual understanding on the issue by the clients can occur. Even small changes in view might lead to resolution on the issue and could have a ripple effect to lead to other agreements in the mediation. Bringing the parties to agreement may be better served by an active mediator, even though much of the activity might be subtle.
The most important factor in mediation success and not allowing the mediator’s “truth” derail the process is that the mediator has respect for both clients. This respect should be evident and actual — demonstrated by words, listening, comments, and structure — or else the moment of “truth” might be too dangerous.
In this safe setting of respect, when the mediator offers his or her “truth” in the right way at strategic times in the mediation, the small changes and cumulative understandings that can make the mediation successful can be greatly facilitated.
© Laurie Israel 2013
on both prenuptial and postnuptial agreements. She works as a consultant and mediator
nationwide. She previously practiced for 35 years in the areas of tax law, divorce, collaborative
law, estate planning, probate of estates and trust administration, as well as mediation and, in
Massachusetts, providing counsel for couples entering into prenuptial agreements. Laurie is
one of the initial practitioners and developers of the field of marital mediation, the practice of
using mediation to help couples solve marital problems and improve their marriages. Laurie is a former board member of the Massachusetts Council on Family Mediation and the
Massachusetts Collaborative Law Council. Her writings include articles on divorce, mediation,
marital mediation, and prenuptial agreements. You can find her articles on www.ivkdlaw.com,
Huffington Post, and Mediate.com. She is the author of the book “The Generous Prenup: How
to Support Your Marriage and Avoid the Pitfalls,” available on Amazon. Laurie is frequently
called upon by attorneys and mediators to share her expertise, through giving both formal and
informal presentations, on the subject of prenuptial agreements all across the country. You can
contact Laurie at laurie@laurieisrael.com. Her website is www.laurieisrael.com.