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The Road to Mediation Influences the Outcome

May 16, 2015

How you arrive at mediation can be influential to the process and outcome of your family matter.

I am frequently called upon by collaborative lawyers to mediate the parenting plan. Clients referred by their collaborative lawyers arrive at mediation with a positive sense of anticipation. While a little nervous, they are pleased to participate. They work well together and the work can progress quite smoothly. They make good use of time and are appreciative for guidance provided.

Once involved in this capacity, I occasionally hear that the collaborative lawyers are stuck and their 4-way meetings are running out of gas with the settlement of financial matters hanging in limbo. I offer to join my clients at their 4-way meetings in the role of facilitator. The clients then go to their lawyers and request my presence. Once requested and given collaboratively trained lawyers, I am always invited in. Invariably settlement discussions improve as I help manage emotions and behavior and facilitate the process. These files have always settled.

I also receive many referrals of separating parents who have yet to retain lawyers. These clients enter into the mediation process with more concern and trepidation than those referred by their collaborative lawyers, but are generally keen to sort things out between themselves. In those cases, I invariably sort out the parenting plan and then refer the parents to select collaboratively trained lawyers to complete their separation agreement. These files go well. The clients have already learned to work together the result of their mediation experience. They know what to expect and they make good use of their collaborative lawyers.

From time to time, I see clients for mediation who have already retained litigious lawyers. These are the lawyers who are not keen to work together and do most of their work by sending blame and demand letters to each other. These situations are almost invariably quite conflicted by the time the clients enter mediation. One has to wonder at times if mediation is being used as a strategy to run out a clock to establish a status quo or provide an impression of reasonableness as only a tool for court purposes.

This mediation process usually starts by the clients taking notes on each others comments. They are entrenched in their positions and tend to hurl their I want statements at each other. Each is also looking for information that can use against the other, assuming the mediation will fail from the get-go.

So whereas clients referred by collaboratively trained lawyers enter mediation with a sense of hopefulness, and those who attend on their own accord enter into the process at best hopeful and at worse neutral, those who are referred by litigious lawyers come with a sense of dread, perched atop a flight or fight response.

Often I must impress upon the clients referred by their litigious lawyers the impact of their conflict on their child’s developmental trajectory and mental health. With that, I can usually then move them towards more constructive discussions regarding their mutual interests, such as the well being of their kids. This is remarkable progress from whence they came.

While negotiations typically improve in mediation, these clients frequently tell me how things have stalled with their litigious lawyers on their financial matters and how there is an escalation of nasty letters. At times, clients even tell me they were unaware of the letters sent on their behalf by their lawyer. What they get is a verbal (telephone) report from their lawyer saying the other side is holding things up.

When the client who received a nasty letter then produces it in a mediation meeting, it is not uncommon for the other person to apologize for what has been sent by their lawyer. (Learning how to talk respectfully and how to apologize when appropriate is a good outcome of mediation.)

In these situations I offer to facilitate a face-to-face meeting with the litigious lawyers. I explain to my clients that rather than sending blaming and demanding letters where neither side really provides answers apart from setting out their counter blame and demands; by sitting round-table, we can fully determine where things are at, what needs to be done and set out a plan for another meeting to facilitate accountability.

My clients understand this because that is essentially the mediation process and because the mediation experience is successful, this isn’t a hard sell, let alone a sell at all. I am just offering a reasonable solution on a kindly basis to help settle the financial aspects of their separation. I am clear that I hold no power or expertise and that my involvement is only to facilitate and manage the meeting.

While these offers are met well by the clients, they are met with range of reactions by the litigation lawyers. Some of the lawyers are puzzled. Some are pleased and some are actually angry.

Of those who agree to my involvement to facilitate a meeting, a settlement usually transpires. Of those who do not agree to my help, the whole endeavor is a house of cards.

In a recent file where we couldn’t bring about a 5-way meeting, I continued to work with the couple and oddly enough they reconciled and will be terminating their lawyers. This isn’t a common outcome though.

In other situations, particularly when a litigious lawyer is angry at my offer, all settlement discussions have broken down and their matter drones on with escalating costs and conflict. In others still, the parties dismiss their current litigious lawyers to start fresh with settlement oriented lawyers, typically those trained in collaborative law. Those matters usually improve and result in settlement agreements.

Mediation is a very useful process for resolving disputes and facilitating settlements. It really is interesting how the process goes, depending upon how the clients enter into the process.

In the end, if it is a pound of flesh you are seeking, find a hardball litigator. You may not reach a settlement. The process will likely cost dearly. There may be no survivors, but you will have extracted your pound of flesh.

That pound of flesh, by the way, may not be metaphorical. High conflict disputes are at risk for creating mental health problems in both the children and parents which may result in suicide or homicide. I do not say that lightly. Ask several lawyers or mental health professionals who have been involved in this work for some time. Many of us have experienced the tragic death of a client or child, either by their own hand or the hand of another.

If you want peace though and a reasonable way to end what was an intimate relationship, particularly when faced with needing to maintain a parental relationship, then consider mediation.

If you are using lawyers, choose wisely. The lawyers you choose can be a determinative factor in the success or failure of the mediation. Need help choosing a lawyer? Consult your mediator.

By the way, my workshop proposal, Mental Health Professionals: Taking Charge of Your Practice, has been accepted as a 90-minute workshop at the International Association of Collaborative Professionals’ 16th Annual Networking and Educational Forum in Washington, DC taking place October, 2015.

I am Gary Direnfeld and I am a social worker. I am both Collaboratively trained and a mediator.

Gary Direnfeld, MSW, RSW

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Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America.

If your relationship is faltering, then set it as your priority.

Read: Marriage Rescue: Overcoming ten deadly sins in failing relationships.

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One Comment
  1. Reblogged this on ecarrollstraus and commented:
    Thank you Gary!

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