(1) Needing help figuring out a “situation” rather than resolving a clear disagreement.
Mediators are trained to help parties work toward a resolution of their dispute. But what if there is not yet a dispute? Very often parties come to mediation with a situation or a problem that needs to be figured out. The parties have not gone so far as to be in conflict on the matter, and, instead, seek the guidance of the mediator to help them figure out what the issues are before even beginning the process of mediating. A mediator can help parties think through their confusion, but if the parties do not have the requisite information to understand the issues, they will need to get that information from somewhere.
(a) The mediator/consultant.
One possibility in the above-described scenario is for the mediator in a specialized mediation field to supply the framework for the analysis. When parties consult a divorce mediator and ask the mediator to guide them as to what issues need to be resolved in the separation and divorce, the mediator takes on a hybrid role as a consultant as well as a mediator. In the infancy of this field (and the entire field is still in its infancy), this has been the norm. As we approach adolescence in this field, I pose the question as to whether there a conflict in these roles? Does anything argue against a single individual providing guidance as to the resolution of issues? How far can the mediator/consultant ethically go in guiding the parties? What if the mediator is an attorney? What if he is not?
Some mediators may feel that it is antithetical to neutrality for the mediator to frame the issues for the parties. In the case of any attorney-mediator, anything the attorney-mediator says that can be interpreted as “advice” may be unethical as the representation of two parties with conflicting interests. In the case of non-attorney mediators, anything that can be interpreted as “advice” may be the unauthorized practice of law.
(b) Another approach: helping the parties decide how to become informed.
Instead of guiding the parties, the mediator can ask the parties whether they are clear on what needs to be decided. If they express any uncertainty, the mediator can ask how they think they can get clear. A skilled facilitative* mediator can help the parties tease out the areas of uncertainty and help the parties figure out how they would like to become informed about the issues.
Many parties will choose to consult attorneys to understand their legal “rights” once they realize that the mediator does not and can not have all the answers or can not advise them. Many divorce mediators have lists of mediation-friendly attorneys who will provide the requisite information and advice to a party without derailing the mediation process.
When the parties are unclear about how to proceed because of the complexity of a financial situation, rather than due to confusion over the law, parties may decide to consult a financial neutral to clarify the situation for them, or they may each retain financial experts.
(2) Needing help with a conflict of opinions.
Parties who come to mediation after consulting or retaining attorneys (or consulting or retaining financial experts) may have a fairly clear idea of what their dispute is about but each party will have a different opinion about the appropriate resolution of their dispute, at least partly due to conflicting opinions by their attorneys or financial experts.
(a) Mediating between the two opinions.
In cases in which the matter to be resolved is the difference of legal opinions between the two lawyers, an analytical and facilitative mediator, especially one with legal training, may conduct a mediation of the legal issues between the attorneys (perhaps in the presence of the parties). If the main issue is to resolve a conflict in the financial picture, a facilitative mediator with a financial background may be helpful.
(b) Neutral Evaluation.
Another approach would be for the parties to obtain a neutral evaluation by a qualified person with knowledge in that particular area of the law who has researched the matter and can offer a reasoned opinion. Or, if the matter in controversy is financial, the neutral evaluation can be conducted by a financial expert. A facilitative mediator can help the parties discuss how to proceed, whether and how to choose a neutral evaluator and what service will specifically be requested of such an evaluator.
(3) Needing help with problematic communication.
Some parties who have a dispute -- or even parties who do not have a concrete dispute -- may benefit from the services of a facilitative mediator who can help them see where their communication is failing. In my experience as a mediator, a large percentage of cases arise because parties are unclear in their communications, assume the other understands what they mean, do not recognize when there are misunderstandings or how to correct them, and develop bad will and suspicion over time. A good facilitative mediator can assist parties with these matters.
(4) Needing help sorting out the issues in their disagreement.
Parties to a mediation sometimes have a hard time breaking down their disagreement into concrete issues, recognizing the essential disagreement, or separating out the different strands. A good analytical mediator can help with this. Once the issues are clear, the mediator should also be able to facilitate a discussion of the issues. Thus a good analytical and facilitative mediator is best for this type of case.
(5) Needing help with emotional issues.
Many disputes involve emotional issues which cloud the thinking, articulation, communication and understanding of the parties. Or, one or more of the parties may feel that their emotions are relevant issues in the dispute and wish to have the other party consider them. Emotional issues are commonly present in divorce mediations, but are also present in many business mediations, other types of family mediations as well as in mediations of court cases. In short, emotional issues are present in most cases – even commercial cases -- because human beings are emotional creatures. A mediator should be sensitive to how the emotions are affecting the mediation. Are the parties able to work productively despite the emotions? Do any of the parties need a break or a postponement of the mediation? Do all the parties feel capable of participating effectively in mediation despite their emotions? Do the parties want to talk about their feelings in the mediation as a way of airing them and moving past them? Do any of the parties feel that their emotions are relevant to the resolution of the issues in the case? Do any of the parties feel they need help dealing with their emotions (such as consulting a therapist) before continuing in mediation? A sensitive and perceptive facilitative mediator should be able to find a way to address these concerns in the mediation.
I use the term “facilitative mediator” to mean a mediator who is highly trained and skilled in the process of helping parties think through and communicate their concerns and work toward a resolution of the parties’ choosing, if they so desire.