The Lawyerization of the Mediation Process

Imagine my surprise years ago when I went through North Carolina family financial mediation training and I learned that the norm for mediating a couple going through divorce was that

  • both parties have lawyers with them
  • the mediator is usually another lawyer
  • husband and wife are in separate rooms
  • the mediator shuttles back and forth between the separate rooms

I learned this is called shuttle or caucus mediation.  I thought “where was the open discussion, the sharing of viewpoints?” This concept seemed so opposite from the training they were giving me which was that my role as mediator was to help the couple communicate their needs and interests, and help them to understand each other’s needs and viewpoint so that I could help them reach an agreement.  In addition, I was taught that the decisions made were to be theirs and theirs alone.  

These are the top problems I see with “shuttle” or “caucus” mediation:

When both spouses are in the same room, mediation provides a platform to speak openly in a safe environment, which can be especially empowering to a spouse who has often not had their voice or opinions heard during their marriage. A good mediator will not allow bullying or interruption and will try to give both parties equal time to talk. Mediation allows a spouse to get out of those ingrained patterns of communication and may even provide a breakthrough in communication.

If they have children together, the likelihood is that they will be working together (co-parenting) and spending some time together in the future (think graduations, weddings and grandchildren).  Separation during the mediation process maintains the spouse vs. spouse adversarial approach.   For a divorcing couple with children, joint sessions provide an opportunity for the parties to transform their soured relationship into a successful co-parenting arrangement. 

An attorney’s job is to look out for their client’s best interests. It their job to get the most for the person they represent while not taking the other party into consideration.  How can one spouse’s attorney support taking into consideration the other spouse’s needs?  How are they not heavily influencing the outcome and guiding the decisions?  How can this be a self-determining process between the spouses? 

How can an attorney mediator switch mindsets from litigator in the morning to mediator in the afternoon?  These are two very opposite mindsets.  Also, an attorney mediator may get called to court on mediation day.  Delays, delays……

When a mediator shuffles between rooms, the mediator has to choose what and how to convey what was said to the other party.  How does that not influence the outcome? 

Although there are circumstances where the spouse’s simply cannot be in the same room, it seems that many attorneys are afraid of the joint process, afraid to let spouses actually speak to one another, so they steer their client’s away from joint sessions.  It’s unfortunate that many reasonable people simply do not understand the joint mediation process and have no idea that mediation can be much more affordably handled just between themselves and a mediator.  

                        author

Mary Salisbury

Mary Salisbury is a Certified Divorce Financial Analyst, a divorce mediator and divorce financial planner in Wilmington, NC. She is the founder and owner of The Right Divorce Solution, LLC. Ms. Salisbury practiced as a financial advisor and narrowed her niche to divorce when she saw that her clients did… MORE >

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