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<xTITLE>Elian-Now Is The Time To Mediate</xTITLE>

Elian-Now Is The Time To Mediate

by Forrest (Woody) Mosten
Forrest (Woody) Mosten

For weeks, we have all watched as high profile negotiations conducted by governmental and unofficial intermediaries failed to bring a peaceful conclusion to the custody crisis of Elian Gonzalez. Even the Vatican’s offer to intercede was rejected. Finally, patient all night talks got nowhere and Federal marshals with guns have reunited Elian with his father.

Has the time for mediation passed? Or, is this the time when mediation can still have a real impact on the lives of all involved. Could the seemingly unresolvable positions and conflicting values in this case benefit from the structured dialogue, creative futuristic problem solving and healing that mediation could offer?

Elian has been the new millennium’s first media poster child. The world’s fascination with this case is more than Elian’s cuteness, vulnerability and the tragic dramatic events that are shaping his young life. While virtually everyone in America has an opinion on where Elian should be raised, this story is swirling with important issues that are so very emotional and important and beg for resolution in a calm, professional manner in a private setting convened by a respected third person such as President Jimmy Carter, Sen. George Mitchell, or Professor Bill Ury of the Harvard Negotiation Project.

We are a people of action. Attorney General Janet Reno was facing pressure to act. She did. Yet the same passions that were present before her Saturday morning tactics to remove Elian remain today.

We are a nation of law. Yet now there are several conflicting court orders in this case. Even if the legal system ultimately decides that Elian should be returned to Cuba, his loving relationships with his Miami relatives need to be addressed. Will they ever see each other again? If so, how? Will there be telephone contact, Christmas presents delivered, or vacations together as Elian grows older? Is it better for these issues to be resolved by judges in Cuba and this country or by a mediated agreement negotiated around the family dining room table?

Many Miami citizens feel abused by police power. Others feel betrayed by the defiant actions of Elian’s relatives. These polarized feelings require conciliation to lessen resentments, prevent escalation to violence, and perhaps lead to better understanding and healing.

Child custody litigation was once seen as so contentious and adversarial that mediation was considered a waste of time. Today, California law requires mandatory mediation of these most inflamed family situations leading to complete private consensual agreements in 60% of the cases set for court hearings.

The tensions and bitterness between the Miami Cubans and US officials may also seem beyond the power of mediation. Yet, in Northern Ireland and the Middle East, baby steps of understanding and resolution are underway through mediation. Like chicken soup—mediation may not help ---but it won’t hurt either.

Elian will move on with his life. New media poster children will take his place. Just because conflict is no longer on Page 1 does not mean that its root causes are resolved, its symptoms treated, or its solutions fully explored. The lessons of the past century have shown that leverage is ephemeral and passes quickly. Rather than dwell on either the success or the abuse of the predawn raid, mediation involving all stakeholders should be initiated immediately so that Elian’s emotional scars might lead to a measure of improved understanding and resolution for those who have been so involved in his plight.


Forrest (Woody) Mosten

Forrest (Woody) Mosten has been in private practice as a mediator since 1979 and currently is practicing mediation and collaborative law 100% online serving clients throughout the world. Woody is a founding partner of the Mosten-Guthrie Online Training Academy for Mediators and Collaborative Professionals. He is Adjunct Professor at UCLA School of Law where he teaches Mediation, Family Law Practice, and Lawyer as Peacemaker. He and has been in private practice as a mediator since 1979.

Woody is the author of six books and numerous articles on mediation, collaborative law, legal access, and building a peacemaking career. Woody served as convener for the 1999 international symposium, Training Mediators for the 21st Century. He has been Guest Editor for the Family Court Review’s special issues 4 times, most recently for the July 2015 issue on Peacemaking for Divorcing Families.

Woody trains mediators, collaborative professionals, and lawyers in conflict resolution courses ranging from basic to master classes and trainings for mediation trainers and presents keynotes at conferences throughout the world.  In 2019, Woody received the Lifetime Achievement Award from the Academy of Professional Family Mediators and, in 2020, the Southern California Mediation Association established the Forrest Mosten Star Award for Excellence and Innovation in Mediation. Woody can be reached at

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