Family Mediation: New Frontiers
Traditionally, family mediation has been assumed to be limited to matters associated with divorce. Specifically, people come to family mediators when they have decided to part ways and need to settle parenting plans for their children and property matters in cost-effective and cooperative ways. Typically, these matters center around developing separation agreements and/or complete marital settlement agreements.
Separation agreements may be needed to address near-term care arrangements for the children and near-term finances to maintain the parties in viable financial condition while preserving marital assets. It is also the choice of the parties as to whether they want to move on to develop a full marital settlement agreement sooner rather than later.
The full marital settlement agreement needs to address a parenting plan for children, child support, final division of assets and debts, and post-divorce spousal support. Since there is considerably more to be addressed in a marital settlement agreement, many people decide to handle a separation agreement first, then, at greater leisure, proceed to the full marital settlement agreement if they decide to proceed with divorce. Others frequently want to get a firm idea of how things might look if they do proceed with divorce and decide to work on the marital settlement agreement earlier rather than later.
Most certified family mediators are reasonably competent to handle separation agreements and marital settlement agreements. Your choice of mediator often hinges on your comfort level with the mediator and any specialized knowledge that the mediator might have in areas such as pensions and tax matters that might be relevant to your situation. Such cases typically do not require the mediator to utilize specialized skills beyond the general parameters established by law.
Countering the typical cases that focus around divorce are the underutilized areas of intra-family and interpersonal disputes, which are not subject to other forms of dispute resolution or to formal resolution through the courts. These disputes can involve breakdowns of family or personal relationships, the establishment of boundaries in relationships, facilitated discussions as to where relationships are going, and the development of communication guidelines to avoid future misunderstandings.
Mediations in these contexts often involve multiple parties and require specialized training and skills that your typical family mediator would not be expected to possess. These mediations also involve disputes where there are no established guidelines concerning outcomes. In addition to failing to reach agreeable solutions, the wrong mediator can make matters worse and heighten conflicts.
The use of a mediator skilled in mediating multi-party disputes allows the mediation process to be customized as to how it can be most effectively structured. Examples include whether to have separate sessions with either individuals or groups of individuals to narrow down items or options to be mediated, then meld groups together to finalize paths forward. Your mediator will also be able to determine whether additional mediators might be needed to orchestrate the process. On the positive side, mediations in these areas can provide innovative and highly customized agreements that work well for the parties.
An additional area where mediation can be very productive is in mediating limited issues in conflicts currently in litigation. If matters being litigated can be reduced in scope, litigation costs can be reduced and better outcomes in those areas can be achieved.
I have mediated equitable solutions to a broad range of issues in a civil case that was already in litigation. After the highly customized equitable solutions had been agreed upon over numerous sessions, the remaining issues, which were centered around financial damages, proceeded through litigation. Since the scope of items being litigated was significantly reduced, litigation costs were greatly reduced and the parties’ personal interests were effectively addressed to their satisfaction.
In summary, mediation processes in the hands of a properly qualified mediator can be very effective in resolving intra-family and interpersonal disputes that are simply not subject to litigation or other dispute resolution processes. In these situations, an outsider with no vested interest in the dispute can be invaluable in helping parties reach agreements about how to constructively move forward without repeating mistakes of the past.
Furthermore, just because a dispute has moved into litigation with the involvement of lawyers does not preclude the use of mediation to come to agreements in limited areas and proceed through the courts for items that could not be effectively mediated. The use of such mixed or hybrid approaches can result in more optimal solutions to disputes at significant cost savings to the participants.
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Rick Schapira is a mediator at Colin Family Mediation Group and is an avid writer for The CFMG Blog.
