Mediation: An Effective Tool In Domestic Practice

By Hon. Kenneth E. Trabue 
Virginina Lawyers Weekly, November 11, 1996

The growing use of mediation for resolving family disputes stems from the very nature of the process. Mediation brings parties together with a trained neutral – the mediator – in order to find common ground and to serve the real interests of all in reaching a settlement.

By encouraging open, two-way communication, mediation has the ability to expose the real issues in a dispute. It often gives way to the cathartic venting of heated emotions. This improved communication can clear the air so that the parties can subsequently craft a settlement that works for the entire family. This power, coupled with the flexibility and creativity of mediation, yields advantages unmatched by other methods of dispute resolution.

Dramatic changes in the structure of the American family have accelerated this trend toward mediation. Over the last generation the American family has changed markedly. Today, this all-important institution takes many shapes and faces pressures and problems that were inconceivable just a few years ago. The traditional family structure is changing. Rather than Mom, Dad and two kids under one roof, we now have children living in households with step-parents, grandparents or friends as the primary care-givers. Today, most parents each produce income and share in taking care of children.

Conflict has accompanied these changes as relationships change or break down and as the individuals involved are forced to deal with numerous, varied and emotionally charged issues. Mediation is often viewed as preferable to litigation because the parties have more flexibility in resolving their disputes, dividing their property and raising their children. The parties are not bound by the narrow parameters imposed upon the judge by statute, case law and guidelines.

What is Mediation?

Mediation is an informal process in which a trained, neutral third party–the mediator–acts as a facilitator in negotiations between disputing parties. In mediation, the parties, with the aid of counsel, are able to address each other directly in a procedure where neither formal procedures nor the rules of evidence restrict the process.

Usually, the parties enter mediation voluntarily and are not compelled to reach agreement. With the aid of an effective mediator, binding settlement agreements are reached approximately 80% of the time.

Pre-Mediation

The mediator will typically confer with counsel or each party prior to the mediation session to ensure that all logistics and substantive preparations are complete. A time and place for the mediation will be set and the process will be explained. The commitment of the parties to seeking resolution will be confirmed.

The Mediation Session

When the mediation session begins, the mediator explains the process, establishes ground rules, defines goals and sets the tone for a successful mediation. The role of the mediator is to control the process, to manage the interaction of the parties and to assist the parties in identifying their own interests, as well as those of the other party. Another key role of the mediator, particularly in domestic relations cases, is to diffuse hostility when appropriate and to balance the power between the parties.

Each side signs an agreement to mediate which binds them to strict confidentiality and forbids the use of any statements or materials generated in connection with the mediation.

Each side is then asked to present a summary of its view of the dispute, the issues involved and the resolution sought. This presentation is usually a joint effort between counsel and client. After this presentation, the mediator and opposing parties may ask questions to clarify their understanding of the issues. Importantly, there is no formal evidentiary presentation, no oath, no expert examination; no cross-examination.

Each party, in turn, presents its view until all are satisfied that the issues–legal, financial and personal–are all on the table.

Following each initial presentation and throughout the process, the mediator will summarize the position of each party to sharpen all parties understanding of the issues.

Negotiations begin when all views have been fully presented and all issues have been identified. The negotiation stage can take many forms. Initially, it is typical for the parties to negotiate face-to-face in the presence of their counsel and the mediator. It is also common for the parties with their counsel to next meet privately with the mediator. These private meetings are called caucuses. In caucus, positions are analyzed, interests are identified and options are created and explored. In this context, the mediator serves, among other roles, as a shuttle diplomat moving back and forth between the parties as negotiations move toward common ground. Information shared during private caucuses between the mediator, one party and its attorney is confidential and will not be disclosed to the other side without authorization.

During this stage, the mediator focuses on the needs of the parties rather than on assessing blame or assigning fault. The mediator also acts as a catalyst in reality testing ideas, positions and solutions. The mediator does not impose a solution on the parties, give legal advice or advocate any party’s position. Above all, the mediator remains neutral.

Throughout this process, options are generated through brainstorming and then scrutinized. As common ground is found, it is reality tested before being reduced, by agreement of the parties, to a written settlement agreement. Reality-testing might address the tax consequences of spousal support, dependency deductions for children, the ability to pay for college education, future changes in circumstances of child custody, earning capacity, enforcement by contempt of court and the like. Once signed by all parties, the agreement is as binding as any contract. If the agreement is consistent with law and public policy, it can be entered into the terms of the final decree disposing of the case.

Benefits of Mediation

The benefits of mediation in family conflicts include:

1. Having a neutral third party – the mediator – guide the questioning and restate what has been said leads to improved communication.

2. The parties retain the decision-making power; they themselves reach an agreement. In court, a third party makes the decision for them. The judge can never know the situation as well as the parties.

3. All information provided is confidential to encourage a full exchange of facts, ideas and emotions.

4. Mediation allows the parties to vent their anger and frustration. This is often cathartic and gives the spouses the chance to hear, and perhaps understand for the first time, what the other side is saying or feeling.

5. If mediation is used instead of courtroom procedures, children do not have to be exposed to upsetting testimony and examination.

6. Mediation helps to preserve relationships. The opportunity for enhanced communication often leads to an improved relationship that can benefit the entire family.

7. Mediation can be empowering; the mediation process and the mediator can teach the parties conflict resolution skills that can improve the way they live.

8. Because decisions are reached jointly, the compliance rate is higher than with court-imposed solutions.

9. Addressing problems early in the dispute, before positions have hardened and costly pre-litigation expenses have mounted, saves costs and time.

10. By using mediation particularly early in the dispute, the fight within a fight can be avoided.

11. The parties are not bound by equitable distribution guidelines and are able to tailor an agreement that falls outside these parameters, if they wish.

An example of the transforming and educational power of mediation is described in the following letter from a participant in the process:

“What magic mediation is. It smoothes the way for responsible communication rather than control-taking and mischief-making. I learned a lot that day with regard to how an adult negotiation should go, and realized a lot about how the marriage was transacted throughout the years as a result.”

The Role of the Attorney

Client preparation is the most important pre-mediation activity for the attorney. The first objective is to educate the client. It is important to point out that the process offers an opportunity for a more creative result that satisfies the needs and interests of both sides. The dividends of such a solution could be the preservation of their important relationship, especially if children or a joint business is involved. In addition, resolution brings significant emotional and psychological relief. This kind of resolution can bring closure that can free them up to get on with their lives.

The attorney should follow a strategy of collaborative negotiation. In advance, counsel needs to explain that collaborating does not mean being weak. Counsel needs to explain that he or she will be trying to develop rapport with the opposing client so that a settlement can be reached. It is the client who needs to be convinced, so during the mediation, each attorney should talk directly to the opposing party, not necessarily the opposing attorney.

The attorney will be most effective in zealously representing his or her client by serving as an advisor and by promoting a problem-solving approach to the dispute.

Selecting a Mediator

Family mediation is often viewed as more difficult than many other types of mediation because the dynamics are usually more complex and the issues more emotionally charged. Mediators, therefore, need to know how to deal with people in the most personal of relationships, especially where children are involved. In addition, they need to have expertise in the laws governing child and spousal support, child custody, visitation and the classification, valuation and equitable distribution of assets. They also must be informed about assistance and aid through the Juvenile and Domestic Relations Court Service Unit, the Department of Social Services, the Department of Mental Health and counseling groups, CPAs and various real estate and personal property appraisers, etc.

Every family practitioner knows that family disputes can involve a protracted, highly emotional tug of war. Today, increasing numbers of attorneys are realizing the power of mediation to bring these disputes to a close. Through mediation, their clients can reach the kind of mutually satisfying closure that allows them to put their conflicts behind them and to move on with their lives.

The Hon. Kenneth E. Trabue was formerly chief judge of the Twenty-third Judicial Circuit, serving Roanoke County and the cities of Roanoke and Salem; he retired in 1995 after 18 years on the bench. He is now a mediator with the McCammon Mediation Group. 

© 1996 Lawyers Weekly Inc., All Rights Reserved.
Reprinted with permission from Virginia Lawyers Weekly.