Looking back as one of the early professional family Mediators, I believe we are a movement developed out of reaction to the excesses and misadventures of the way divorce was practiced in the early 1970s. Most of the early pioneers I worked with turned to divorce mediation out of frustration with the negative results of adversarial litigated divorce. As a young attorney, my frustration started with my client, Lorraine Brown, who was killed in 1976 by her husband shortly after I appeared in court with her on a temporary motion. The frustration continued to grow later that year during an 18-day custody trial I litigated that was little more than a series of nasty allegations made by each side. Jim Coogler, remembered by many as the founder of divorce mediation, was motivated by his own divorce experience. Like many others before, and since, he experienced a process that he believed unnecessarily caused the loss of his business and the alienation of his family caught in the throes of the adversarial system. At the time, we had no idea if mediation would work, especially with high conflict couples, but our beginning efforts were generated by a growing realization that there must be a better way for divorcing families to get through this most difficult time of their lives.
We faced a good deal of skepticism in those early days. We were told all clients needed legal representation, that they really weren’t competent or capable on their own to make such difficult settlement decisions, and moreover, mostly lawyers asked, “How can one person represent both sides, isn’t that a conflict? “ I even appeared before the Tennessee Board of Professional Responsibility urging them to reverse a ruling that said attorneys may not mediate divorce cases because it would be a conflict of interest to help both the husband and wife, and that therapists may not mediate divorces because they would be engaging in the unauthorized practice of law.
Now, almost 40 years later, family mediation faces a new set of problems. We still face the same resistance, but in subtle and more difficult ways. We continue to have an adversarial system of divorce that many would say has changed little in spite of the work of the mediators. Yet, in place of overt opposition to the idea of family mediation, we are seeing a growing trend toward what I have called “lawyerization” of mediation, where settlement conferencing is called mediation with the couple kept in separate rooms, being told whether or not their case has any legal merit. Many new mediators, with backgrounds in law or judging, are now entering the field of family mediation and quite a few of them, without any formal training in mediation, incorporate this legal approach to the practice of mediation. This has blurred the boundaries between adjudication and mediation processes, causing confusion for the public and hampering the true promise of mediation.1
In the early days of designing a mediation process for families, there was no blueprint. The only previous use of mediation was in the narrow area of labor/management negotiations. Instinctively perhaps, our goal was to try to move family mediation as far away as we possibly could from the assumptions of the adversarial system. I recall spending part of a summer in 1980 working with Jim Coogler in an experimental project mediating all types of divorce conflict in the Broward County (Florida) Family Court. Jim and I were offered space in the basement of the court house to conduct our mediations, but after some discussion, we turned the offer down because we did not wish to confuse the public into thinking mediation was part of the court system. We rather rented space in the Las Olas Building six blocks from the courthouse. Likewise, when couples asked us what the law would say about what should happen, both Jim and I would respond, “That’s impossible to predict, we instead would like to help you create your own law of fairness.”
We changed or discarded many of the standard assumptions (or Laws, if you will) that had previously guided the divorce process. We created Rules of Mediation that asked couples to adopt the idea that “Fault shall not be a factor in any of the divorce decisions made by the couple.”2
We asked different questions. The custody question was changed to the parenting question. In 1980, we began to teach in our mediation trainings that we should be building parenting plans instead of mediating who is a better or worse parent to determine who gets the house, who gets child support or preferred status as the physical custody parent. In those early days we believed (and still believe) that it is harmful to label a parent as a “non-custodial visitor.”
We created a mutual atmosphere by asking couples to negotiate in such a way that asked them to assume they could only get a good result for themselves when they also helped the other obtain a good, just and fair result.
We changed the game. No longer was it somebody is a good parent, the other is a bad parent, somebody wins, the other loses, somebody gets custody, the other is labeled a non-custodial visitor, or, somebody gets the house, the other gets kicked out of the house. The entire focus was and still is on helping couples create stable, healthy relationships that to the extent possible, increase quality time of both parents with the children rather than fighting to restrict the other’s time. The entire focus was and is still on helping couples create decent, adequate housing for both of them to be able to parent and raise children, all within the context of their resources and their finances.
We created conditions for creative solutions to emerge. By moving away from determinations of right and wrong, couples became free to generate their own unique options – that fit for them and only them. When there are only two choices, to either find for the Petitioner or the Respondent, the outcome is limited. But, when you encourage the couple to engage in interest-based negotiations, a whole arena of creative solutions can be found. In our practice, beginning in 1983, couples began using a children’s checkbook as a method of sharing the costs of raising the children.3 After the Retirement Equity Act of 1984, we realized that it was possible, through cooperation, to access without penalty some retirement funds at divorce so a couple could use it for a down payment on a house or to pay off debts.
We tapped into the couple’s humanity by refusing to engage in settlement conferencing, using caucuses only sparingly and then only to avoid impasse. By keeping them in the same room face to face, and by keeping the mediation a room a safe environment, we found that they began to find solutions together, rather than hanging on to their hurt and anger. We discovered a myriad of ways to move them from adversaries to partners, helping them view the other as a person they once had an intimate relationship with, not as the enemy who could not be trusted.
We emphasized the future. Couples with spousal support issues were not told what the court might likely award using the facts of their case. Instead, we helped them create separate financial futures and encouraged them to consider a plan that would hopefully allow the lower income spouse to increase their level of self-sufficiency. Past complaints were not used as a platform to show the other’s bad behavior, but seen as framing what changes needed to occur in the future.
Most of all, from the early days continuing to the present, we respect the self-determination of the people sitting in front of us. We value their knowledge and we refrain from engaging in any coercive, adjudicative or any other approach that tried to predict outcomes in court. When asked by the couple about the law, we ask them to create their own laws of fairness in the mediation room. We assume that they are competent to make their own choices and their own decisions about what was best for them provided they had knowledge and understanding about the choices and alternatives available to them.4
These approaches were refined and developed in the crucible of conducting daily mediations and the exchange of ideas at conferences of the Academy of Family Mediators and subsequent organizations. These concepts and interventions are continuing to be developed and applied by mediators who carry the same zeal and excitement about what my partner Marilyn and I call “Client Centered Mediation.”5
Yet, today, we are at a crossroads. In our article about what I call the creeping legalization of the mediation profession, we are seeing the public being confused about what mediation is.6 If we have learned anything from the past almost 40 years of family mediation, we must acknowledge that our early instincts were correct. We must continue to try to move professional family mediation as far as we can from the assumptions of the adversarial system. Family Mediation works when it is conducted by trained professional mediators who understand and can apply the principles discussed above.
There are some very hopeful signs. Around the world court systems are beginning to realize that the adversarial system does not have the ability to teach divorcing parents how to cooperate post divorce. Australia and New Zealand have adopted mediation as a first choice for its divorcing population. Singapore has been working to offer mediation to all divorcing couples. Senator John Lesch, the chair of the judiciary committee in the Minnesota House, recently introduced a bill created by a group called together by Marilyn McKnight that would create Minnesota Cooperative Private Divorce, a process that allows couples to divorce without needing any court approval or oversight of their divorce decisions.7 It is hoped that such a voluntary alternative will allow some of the public to avoid getting drawn into the undertow of an adversarial system.
The Academy of Professional Family Mediators is growing and it is supporting an effort to obtain certification and credentialing of mediators. This effort is close to completion and when made available, it will help create boundaries between mediation, law, therapy, psychology and other fields that overlap with mediation. Certification of mediators is a necessary step in the evolution of the field of family mediation, not only to help the public understand the benefits, but also to educate the public about boundaries between the various professions that help families address conflict.
If we continue to identify, refine and apply the concepts and interventions used by professional family mediators, it is quite likely that in the not too distant future, divorce, and separate parenting issues will be accepted not as legal problems to be fixed by the court, but as family conflict that needs to be decided by the family members themselves. In order to get there, we must all acknowledge that family conflict is better resolved in a mediation process that does not assume that a relationship on the rocks needs a legal contest to make it better.
1 Erickson, S.K. & Johnson, M.E. (2010). ADR Techniques and Procedures Flowing Through Porous Boundaries: Flooding the ADR Landscapes and Confusing the Public. Practical Dispute Resolution, 5, (1).
2 Coogler, O.J. (1978). Structured Mediation In Divorce Settlement – A Handbook for Marital Mediators. Lexington Books.
3 Erickson, S.K. (2006). If They Can Do Parenting Plans, They Can Do Child Support Plans. William Mitchell Law Review, 33 (3).
5 Erickson, S.K. & McKnight, M.S. (2001). The Practitioner’s Guide to Mediation: A Client Centered Approach. Hoboken, NJ: Wiley & Sons.
6 Erickson, S.K. & Johnson, M.E. (2010).