What is Mediation?
Contact: 831-429-9721 ~ crose@mediate.com
Most clients in need of a process for their divorce proceeding, hold only the most general notions of mediation and how it works. More often than not, their assumptions grossly underestimate the capacity of a skillfully managed mediation process to address their needs. Typically, the more fearful or anxious one is about a pending divorce, the more one moves toward the idea that what is needed is a lawyer to protect that person from the perceived threat that the other spouse represents. The truth is that the traditional adversarial court process engenders, rather than eliminates, the anxieties and fears the clients have. Worse yet, it sustains them over the nine months to a year and a half that typifies litigated divorce cases. Needless to say, the longer the case stays unresolved, the more it is going to cost each of the parties.
Mediation is a process that allows the clients to come into it at any stage and with any emotional circumstances. There are no preconditions. It identifies for each client the method and manner in which it can serve and respond to individual needs. It works because it demonstrates, in very practical and specific ways, how working collaboratively (instead of competitively) can most benefit one's self-interest. It can work as well for couples in a state of high conflict, as it can for those who have high levels of cooperation.
The process begins with making agreements that ensure the safety of each party. The parties are assisted in identifying and establishing boundaries necessary to control their interaction and insure safe and constructive dialogue. Ironically, the parties are challenged to take control at a time when their circumstances are perceived to be out of control.
It is the task of the mediator to identify the individual needs of each party and to develop a process that responds to those shared and differing needs. Frequently, there are issues of immediate and pressing concern, in the very first session. Assisting the parties to bring temporary solutions to what are often very threatening problems, can demonstrate for them how effective a structured, collaborative approach can be.
Beyond the crisis issues, the structure of the mediation process could be described, somewhat simplistically, as a four stage model. The first stage is gather information and develop the issues and interests of the parties. Secondly, the options or choices which flow from the circumstances and interests of the parties must be developed. Concurrently, the consequences of each of the choices need to be analyzed if the parties are to be making informed choices. These two stages constitute the Preparation Phase of the process.
The next two stages--preparing settlement proposals and negotiating to an agreed-upon settlement--constitute the Negotiation Phase of the process. It is important to distinguish Preparation from Negotiation in order to be able to freely discuss perspecitves, express opinions, and explore settlement possibilities without either party feeling pressured or pushed. It is typical that clients will have tried some negotiating on their own before coming into mediation, and found it to be frustrating and unsuccessful. Mainly, the reason for their lack of success was lack of a structure or process to anchor the discussions.
During the preparation phase, it is the responsibility of the mediator to assist the parties in developing the capacity to negotiate effectively. This includes education, analysis, acquisition of expert assistance (including appraisers, accountants, financial planners, mental health professionals, etc. where necessary or desired) and the development of the many interests held by each party that can be used in negotiating.
This approach, over the last 23 years, has proven time, and again, to provide real protection to the clients by keeping them in control of the process and the outcome, in a manner that is unmatched by the traditional adversarial process and the Court system.