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:
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.
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.