What is the most basic and primary characteristic of good mediation? Neutrality! I usually tell clients, “Why would you come here, to sit in this room and have your spouse and me gang up on you? You would not. That is why my neutrality is essential. If at any point either of you feels that I’m not hearing you, or that I have misunderstood you, I ask you to please bring that to my attention, because it is not my intention.”
A good mediator must be neutral as to the result in order to accomplish Standard I, the principle of self-determination by the participants. We must always remember – it’s about them, not us!
Standard I also says:
B. The primary role of a family mediator is to assist the participants to gain a better understanding of their own needs and interests and the needs and interests of others and to facilitate agreement among the participants.
Recently, Ailene* came in to see me as a review attorney. She told me that she and her husband, Josh*, were working together in mediation, and that the mediator had suggested she consult with an attorney, since her husband is an attorney.
I asked Ailene the name of the mediator with whom they were working. I was very surprised to hear the name of a prominent and well-known litigator. (“Grrr,” I thought, “more encroachment on our field by litigation attorneys.”) I had not known that Bob Bobert* worked as a mediator.
I asked Ailene how it was all going, and as she began to tell me about their “mediation” process, I grew increasingly surprised. Josh, as I mentioned, is an attorney – and as I listened to Ailene, it appeared that Bob Bobart was slipping down the slippery slope of advocacy, during their mediation process.
Bob told Ailene and Josh exactly what amount of maintenance Josh should pay, and for how long. Bob told them how much Josh’s law license (earned during their marriage) is worth, and what percentage of it he thought would be a reasonable one to transfer to Ailene, and then outlined, in great detail, how payout could be structured to accomplish that.
I found myself faced with a conundrum. It was pretty clear to me that Bob had stepped over the line of neutrality. What he was doing sounded closer to Early Neutral Evaluation – where a very experienced matrimonial attorney renders a ‘down-and-dirty’ (quick) opinion regarding what he or she predicts would happen in court. This process (I have heard) has been effective for some cases that are actually headed toward trial, as the parties have an opportunity to do an abbreviated presentation of evidence and arguments, and see how it all sounds to the expert – a kind of non-binding arbitration.
I had my own feelings of conflict about this – because the recommendations that he was making were in fact great for Ailene – generous – and as her reviewing attorney, I loved the work that Bob was doing with this couple. But as a mediator – I shuddered. They were not in a mediation process.
Giving Bob the benefit of the doubt – perhaps he felt the need to be more active, more opinionated, and more directive because Ailene is not an attorney – she has been out of the workforce for a number of years – and Josh, in contrast, is a highly-paid finance attorney. Perhaps Bob felt that he was acting ethically, consistent with the terms of Standard VI:
B. Consistent with standards of impartiality and preserving participant self-determination, a mediator may provide the participants with information that the mediator is qualified by training or experience to provide. The mediator shall not provide therapy or legal advice.
But when Bob outlined the precise amount and duration of maintenance, was he not providing legal advice to Josh and Ailene?
As chair of the Joint Ethics Committee, I found myself worrying about whether I should report Bob to the Ethics Committee. And would my role as Ailene’s review attorney conflict with my doing that? But luckily, the process of mediation corrected itself. Ailene forwarded to me a note she had received from Josh, in which he stated to Bob that he would not come back to mediation, because he perceived Bob as not being neutral. He said that he had had a chance to meet with his own reviewing attorney, and he listed five legal arguments in his favor which he said that Bob had not mentioned at all during mediation, and that after he met with his own attorney, he felt that Bob had been advocating for Ailene.
Whenever I start to think of legal arguments during mediation, I make sure to describe both sides – for this very reason. “Now your attorney would argue x,y and z, and those are the strengths of your side. But [to the other spouse] your attorney would then argue a,b and c.”
When I first began mediating (lo, these many years ago) I had the feeling that I knew best – that I knew what a healthy family, a healthy relationship looked like, and that I could guide them to have a healthy divorce. But I found that – whenever I shared my brilliant ideas with participants – they were rejected. One of the powerful tools we have in mediation is that we let them (help, encourage, guide them) to come up with their own ideas. It is then much more likely they will reach agreement, and that they will comply with the ultimate terms in the agreement, because they came up with those ideas themselves.
I don’t know how this will all end for Josh and Ailene. But I don’t know if Bob will be doing much more work as a mediator. But this is a win for the process of mediation.
* Not their real names.