Divorce Mediation: Is Separate Always Better?

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by Benjamin Papa, Kregg Nance October 2009

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It is our experience that the vast majority of divorce mediators in Middle Tennessee conduct all divorce mediations with the parties in separate rooms from beginning to end. This seems to be true regardless of whether the parties have children together, their ability to communicate effectively, or the general level of conflict they are experiencing. This article challenges the premise that “separate is always better” and asks whether automatically separating the parties in divorce mediation serves the parties well, especially long-term.

This question seems particularly important in light of the fact that Middle Tennessee seems to be an anomaly on this issue. The rest of the country, and even other regions of Tennessee, tend to have a more varied approach to this issue based on the parties’ needs during the course of the mediation. In an interview for this article, John Wade, Professor of Law at Bond University in Australia, said “I have taught [law] for 20 years…and separate meetings are used as the exception, not as the starting point, in all family disputes.” In fact, many ADR professionals in other states would not even call the all-caucus-all-the-time model “mediation” at all, but would instead call it “shuttle diplomacy,” a distinct form of ADR.

There are three main reasons why immediately separating the parties might do them a disservice in many cases:

1. Communication

Professor John Lande of the University of Missouri School of Law believes that in shuttle diplomacy the parties lose the chance that mediation often otherwise affords, to help the parties communicate in a healthier way than they are able to do on their own. He states:

Mediators who spend all their time in caucus…lose important opportunities to improve communication… Many mediators use caucuses selectively -- only when they have a specific purpose for the caucus (Emphasis added.)

Oftentimes parties in divorce automatically assume the worst about the other and great strides can be made in their relationship, as well as toward reaching an agreement, when they see and hear the opposing party make reasonable suggestions and decisions. Keeping the parties huddled in separate rooms with their lawyers perpetuates the idea that their spouse is conspiring against them, which although usually not true, leads to even more entrenchment and anxiety on both sides.

Jim Melamed, CEO of Mediate.Com, agrees. He told us, “I have a strong bias in favor of joint sessions…in terms of clients having direct discussions and making decisions together. Surely this bodes well for the future if joint parenting is to be done.”

2. Quality and Durability of Agreement

Shuttle diplomacy overemphasizes the mediator, reducing parties’ ability to make good decisions on their own behalf. Jim Melamed believes:

The reason a mediator, especially in divorce, should not automatically caucus is that something very large is lost when the mediator caucuses. Namely…only one person in the system, the mediator, suddenly knows everything…depriving the parties of their own ability to directly work things out.

More concretely, if the parties are always kept apart they are prevented from having an organic conversation about settlement possibilities in the structured safety of mediation, losing the possibility of coming up with richer, more creative agreements than merely exchanging settlement offers from a distance can afford. Even more important, the more the parties feel they have created their own agreement the more likely they are to have long-term buy-in, reducing the risk of post-divorce conflict and better positioning them to be good co-parents after the divorce.

3. Efficiency

Shuttle diplomacy is less efficient and therefore more expensive for parties than is conducting at least most of the mediation in joint session because no time is spent with the mediator rehashing the other side’s position each time an exchange between the parties occurs. The parties hear directly from each other in real time, potentially saving hundreds or even thousands of dollars over the course of the mediation.

In sum, we are convinced from our own practice as well as from speaking with other experts, that the “culture” around divorce mediation in Middle Tennessee might be improved if mediators would experiment with using joint sessions in most divorces – particularly ones where the parties will be co-parenting together after the divorce. After all, almost all of us were trained to do divorce mediation that way.

Biography

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Benjamin Papa is a family law attorney and mediator and founding partner of the firm Papa & Roberts, PLLC in Brentwood, Tennessee.  Ben has degrees in psychology, religion, and law and has been practicing law since 2000 and mediating since 2003.  In addition to family mediation, he is trained in parent coordination and collaborative divorce.  He is an Advanced Practitioner for Family Cases through the Association for Conflict Resolution.

Kregg Nance is a Rule 31 listed general civil mediator in Nashville, Tennessee.  He has a graduate certificate in conflict management from the Institute for Conflict Management at Lipscomb University.  He is currently pursuing a masters degree at Lipscomb and interning with Papa & Roberts, PLLC in Brentwood, Tennessee.  At present, Kregg mediates married and unmarried family disputes for Nashville Conflict Resolution Center and Sumner Mediation Services. He is also a former elementary school teacher.

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Janine	10/14/09
I am what is now called, in Australia, a Family Dispute Resolution Practitioner. i.e. I mediate between separated couples about arrangements for their children to spend time with each parent and any other parenting concerns. We are strictly guided by the Family Law Act. One of the most important responsibilities we have is to ensure the client's safety. For this reason quite a high proportion of our sessions are in "shuttle" format because one or other party says s/he (most often she) does not feel able to be in the same room as the other parent. Clearly, where someone would feel intimidated, frightened, bullied, overly distressed, unsafe, then we have no option. However, sometimes the reason is not as strong as this and seems to be just a matter of anger with the other person or not being willing to hear his/her point of view. I find that, not only is it difficult to do as a mediator, but misses the essential benefit of mediation which is to hear and see the other person in a situation where you are better able than usual to hear their message. It is this process that offers to opportunity for attitudes to shift and become more constructive. I am always disppointed in the outcome of a shuttls mediation. I would love to read an article on how to do shuttle mediation more effectively and, maybe, how to influence clients to choose joint wherever possible. In all the training and reading I have done over the last 9 years I have not encoutered one singel article, seminar, lecture, workshop, chapter in a book or conference that explains how to do shuttle mediation. Please fill in this gap. Add New Comment

Evan Ash,   Olathe KS	evan.ash@jocogov.org      10/14/09
parenting is a
The model of separating parents sounds like civil mediation which is often based on seeking compromise rather than interest based bargaining. mediation here has been going on for almost 30 years and the parents are always together unless there is domestic violence concerns. This mirrors the reality of parenting and the rela challenge of dealing with ongoing human relationships and not commodities. Add New Comment

Diana Mercer,   Los Angeles CA	diana1159@aol.com      10/13/09
wow, completely opposite approach....
Here in Los Angeles, we keep couples together to the maximum extent possible. After all, they're the stakeholders. Is the shuttle diplomacy setup based on the mediators' discomfort with conflict, or the parties' wishes? hmmmmm. Add New Comment

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