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Manual > 4 - Being a Mediator > Mediation Cultures

Mediation Cultures

There have, historically, been differences between divorce and civil mediation based primarily on the issue of whether legal counsel is present. When legal counsel is not present, many, likely most, divorce mediators will prefer to meet with both parties present, commonly around a coffee table, for multiple two or so hour long sessions, perhaps every two weeks. The mediator is somewhat leery of meeting with the parties seperately, knowing that, if this takes place, suddenly the mediator is the only one who knows everything and there is a cooresponding shift in power to and reliance upon the mediator. Participants are encouraged to jointly problem solve solutions to their many integrated issues and asked to consult with legal counsel between sessions any before signing any agreement. 

Suddenly, when we introduce legal counsel into the mediation session, important changes take place. We will likely, for whatever reason or lack of reason, sit around a conference, rather than a coffee, table. Because the scheduling is so challenging with so many participants involved, we will likely be willing to meet for a substantial length of time, all day if necessary, and, suddenly, we are doing much more caucusing than meeting in joint session. With legal counsel present, the discussion can tend to become more cognitive, rights and power based than problem solving and experience based. As neither legal counsel nor the client are willing to demonstrate much flexibility at all in joint session without first clearing it with the other, a whole lot of caucusing takes place as the parties incrementally shift and work their way to agreement. Some of these caucuses will likely be between the attorney and client without the mediator. There is trust, but not complete trust, in the mediator to convey the proper information, and no more information than that information.

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