Everything You Need to Know About Our Mediation Solutions
What is Mediation?
Just this, a way to resolve conflict.
For as long as there have been people, there has been conflict. In every society, in every family and in every relationship, conflicts arise. When there is a reasonable level of trust and communication between people, then conflict can be resolved through frank discussion and compromise. When trust and communication are lacking, then we turn to other methods to resolve conflict.
In general, we have two other methods to resolve conflict, those based on power and those based on reason. The legal system resolves conflict based on power. The mediation system resolves conflict based on reason. Mediation is simply an effective way to resolve conflict through reason, and works particularly well in divorce conflicts.
A couple facing divorce has to solve multiple, complicated problems. How to form two viable economic lives where one had existed before? How to pay bills that have built up? How to allocate assets that can’t be easily sold or divided, such as a business? How to arrange time so the children feel the affection of both parents, and neither parent is marginalized? All of these problems, and more, exist in a framework of powerful emotions and intense anxiety. The court system’s answer is to solve all these problems through power. A judge is inserted into the midst of the relationship with the power to decide every issue, big and small. The people involved give up all decision making to the judge, and must become instead adversaries. Each is required by the legal system to convince the judge that their position on every issue is right, and the other person’s position is wrong. The natural dynamic of this process is to polarize the people on every issue there is, and to increase hostility and anger. Because the people don’t know the principles that the judge will look to in deciding the issues, each hires a professional advocate to sharpen all distinctions and craft stronger arguments. This intensifies the competitiveness and the combative feelings even more. And this contest slogs on for years, as wins and losses accumulate, and costs reach alarming heights.
Eventually, in most court cases, a settlement is reached. But even a settlement made in the court system means decisions made in the midst of a power struggle. Commonly, settlements are reached only on the eve of trial, when emotional exhaustion has taken its toll, when fear makes bad decisions look acceptable, and when costs are spiraling out of control. A settlement in the middle of a fight means decisions at the point of a gun.
The mediation system solves the problems of divorce through reason. Instead of power, the Mediator explores important interests and crafts practical solutions together with the people involved. The art of the Mediator is to focus the people involved on facts and not on fights and to reach answers despite difficult feelings. The people who have to live with the solutions never lose their power to decide what those solutions will be. And they make those decisions in a rational way, after careful consideration, without going bankrupt, and not at the point of a gun.
At Mediation Solutions, what we value most is that the level of conflict that people come into mediation with sometimes lessens, but never increases. Mediation does not turn former partners into permanent enemies. Because of this, their willingness to live with the answers they formed is greater, and their willingness to work together when their children need them is a reachable goal.
Do we need to get along in order to mediate?
When Henry Kissinger mediated an end to the Middle East War in 1974, the Arabs and Israelis had zero trust, zero communication
and zero goodwill. When the Federal Mediation and Conciliation Service resolves disputes between the largest unions and the largest companies, there is zero trust, zero communication and zero goodwill. When the Equal Employment Opportunity Commission reports that 96% of employers and 91% of employees would use mediation again to solve problems, they are referring to situations where
there was zero trust, zero communication and zero goodwill. Yet mediation succeeds in all these instances. It succeeds because people do not need to get along in order to successfully mediate. In fact, the whole point of mediation is to find rational answers for people who don’t get along! To mediate successfully, the only thing the people need to agree on is this: a desire to reach fair solutions – even if they differ on what a fair solution might be. If that foundation exists, a skilled mediator can develop answers in a way that makes problems with communication, trust and goodwill irrelevant, and in a way that those qualities may actually improve. A skilled mediator focuses attention on facts and away from fights. A skilled mediator crafts agreement out of adversity. So says Henry Kissinger.
Will I be protected in mediation?
In the court system, each person has an attorney to protect them. In the mediation system, each person can have an attorney, their parents, clergy, therapist and financial advisors to protect them. If a person feels they need back-up, they will have it. Because each person is a decision maker, no decision is ever made until the person has acid-tested that decision and has weighed it together with any adviser or counsellor they choose.
In mediation we say: Question, Consult, Confirm. Take what happens in mediation to those whom you rely upon for guidance, and bring back to mediation your thoughts and concerns. If you have confidence that, aided by those you trust, you can make good decisions for yourself, then mediation will allow you to make good decisions. ****
However, we at Mediation Solutions take our responsibilities very seriously. We want agreements that are carefully thought out and that reflect the important interests of both people. If our Mediators perceive that one person is cowed by the other, and unable either directly, or with the help of outside advisors, to speak up for themselves, and instead that person is just agreeing to whatever is proposed by the other; then we will terminate the mediation.
Our Mediation Agreement, which is signed by both people when mediation commences, always reserves to the Mediator, the right to end the mediation in this circumstance. We will never knowingly allow mediation to be used to create one-sided agreements.
What is the Mediation Process?
The Mediation process starts with an organizational session. During this session, we try to identify every issue that needs to be resolved and talk about what information we will need to understand each one. This could involve arranging for house appraisals, financial statements and asset valuations. At the organizational session, we will also discuss any emergency issues and try to resolve them right away, such as problems with paying bills or problems with a child’s conduct. Most often, but not always, the organizational session is attended by both people involved.
After the organizational session, there are a series of conferences, and at each conference we start tackling one specific issue. Once we reach a tentative solution, we move on to the next issue. During each conference, the mediator may speak with both people together, and may ‘caucus’, which means speaking with one person at a time. The caucus is an important part of the mediation process, because it allows the mediator to discuss an issue with each person in a way that minimizes the anger and frustration associated with that problem. The caucus enables the person and the mediator to discuss solutions in an unpressured, reasonable way.
Throughout the conferences, we stay abreast of gathering the information that is necessary to resolve future issues, such as the financial statements and appraisals.
At any time throughout the process, each of the people can take ideas discussed during mediation to those whom they trust, and at any time, they can bring ideas to the Mediator for consideration.
When all issues have been tentatively resolved, they will be put into written form and drafts given to both people. Each person will have time to review the agreement in its entirety with whomever they want, including their personal counsel, and be certain that they have reached good decisions. We at Mediation Solutions want these agreements to work in practice for years to come, and we know that the best way to achieve that is for both people to have confidence when they sign that the agreement is fair to them overall.
Once the agreement is signed, it is filed with the County Clerk’s office in the county where at least one of the people lives. It usually takes the County Clerk several months to process the paperwork, and once they do, the people receive a Judgment of Divorce, officially ending the marriage. The agreement they reach is part of the Judgment of Divorce and the terms of their agreement become enforceable by law.
Are there times when mediation is not appropriate?
As discussed above, the Mediator reserves the power to terminate the mediation if the Mediator feels that one person is not able to meaningfully participate in the process. We will not knowingly allow mediation to be used to produce one-sided agreements. So, mediation is not appropriate if either person does not feel capable of speaking privately with the Mediator about what is most important to them.
Mediation is also not appropriate when force is being used in some way between the two divorcing people. This can be physical force, such as violence, emotional force, such as intimidation, or economic force, such as impoverishing a person or a household. In all those instances, we would recommend obtaining relief in the form of orders of protection or emergency support orders.
What does Mediation cost?
For the organizational session and all subsequent sessions, the cost is $600.00 per session, and each session lasts approximately ninety minutes. If a session runs over by more than a few minutes, then increments are billed in fifteen minute segments. Payment for all conferences is expected at the time of the conference. Sometimes, conferencing will take place between the Mediator and one or both people between sessions, and when it does, for more than just a few minutes, increments are billed in fifteen minute segments.
In most cases, the mediation is concluded in ten sessions or less.
When an agreement is reached, Mediation Solutions will prepare a draft of the agreement. The cost for this preparation is generally $500.00, but it may vary depending on the nature and complexity of the agreements involved. Upon filing with the County Clerk’s office, there are fees due the County Clerk directly.
In addition, there may be fees due for appraisals and valuations of certain assets, to be paid directly to the appraisers, when the matter requires it.