I’ve got a pet peeve about mediation: The term encompasses such a varied range of approaches, they hardly deserve the same word.
For example, I frequently see mediators — mostly attorney-mediators — whose concept of mediation is what I’d call a facilitated negotiation. That is, the two parties sit in separate rooms, and the mediator serves as a go-between, carrying offers and counteroffers back and forth, trying to help the two sides agree to terms. The focus is very much on striking an agreement.
And I’ll see websites that describe mediation as though that’s the only way it can work. They say things like: “Mediation is one way to resolve disputes. In a mediation, you’ll never even see the other party.”
This approach to mediation isn’t necessarily all bad. It depends a lot on who’s mediating. But it’s just one type of mediation. And to my mind, even if the mediator is very skilled, this approach drastically limits what a mediation can accomplish.
And sometimes it is all bad. Or at least mostly bad. I met a couple recently who’d spent 8 hours (and thousands of dollars) in this type of mediation. They had lawyers doing most of the talking, who escalated the conflict by trying to play hardball, and the mediator allowed it. At the end of those 8 hours of shuttle negotiation, they had no agreement and felt much worse towards each other than when they started.
Afterwards, they met up privately and were relieved to find how much better they did just talking on their own, without the mediator and lawyers in the mix. They ended up working out some of the divorce together, then used my collaborative mediation to handle trickier aspects where they had trouble agreeing. They ended our mediation on better terms than they started, hopeful about their future working together as co-parents.
Another approach is called evaluative mediation. Again, this is an approach practiced by people with a law background, and again it revolves around negotiating the details of an agreement. The mediator focuses on how your case might go in the legal system, scrutinizing your arguments and suggesting how a judge would rule. This is meant to push you towards an agreement along those lines. It works great as a reality check if you each have lawyers telling you it’s a surefire win, and suddenly a mediator with a legal background starts blowing holes in their case strategy. People stop grandstanding and start negotiating real quick.
I’m sure this works well for some couples. Otherwise nobody would practice it. But again, I think it severely limits what a mediation can accomplish.
The collaborative approach I follow is very different. I’m only as concerned with your legal rights as you are yourself. And while it’s always nice to reach an agreement on paper, I’m also very concerned with the quality of the agreement — that is, whether it will work as intended, plus any unintended side effects — and with the people involved, including the parties to the mediation and any children.
So for example, if I lead a mediation where the two parties are very upset with each other, and they’ve got kids, then one of my goals will be helping them manage their hostility as co-parents. This is a crucial aspect of their divorce… as failing to manage any hostility can be horrible for the kids. (Research shows that leaking conflict onto the kids is actually the single biggest threat to their healthy adjustment following a divorce.) Often I become aware during the mediation that this is a problem. Sometimes the parties tell me so, and other times it’s just obvious.
If I lead that mediation, and the two parties reach an agreement on paper, but they end the mediation still at each other’s throats, to me that’s a failure. Because I know the kids will be suffering for it.
But managing hostility is a skill people can develop. When I mediate, I’m there setting a different, more constructive tone: calmer, less judgmental, more diplomatic. I confront negative behaviors and explain their potential impact. Sometimes I also teach people techniques to keep their communication productive, or we build communication guidelines into the settlement agreement itself. When the two parties engage in this collaborative process and see results, it sets them up to continue working together cooperatively in the future.
Even if kids aren’t involved, it can be extremely helpful to learn better ways to manage this conflict. People often end up on better terms than they started. And reducing conflict brings closure, positioning you for a smoother adjustment to your new normal.
So as you’re considering mediation, you should think about what kind of mediation you’re after. If you just want to discuss the nuts and bolts of an agreement, there are mediators who focus on that. If you’re happier with a legalistic focus, there are mediators who do that. But if you want to work out an agreement together and hopefully ease tensions in the process — whether for the kids’ sake or for your own peace of mind — you’ll be better off with a more collaborative process.
Disclaimer: I’m not promising that my approach works every time. Sometimes it doesn’t. That’s true of any approach and any practitioner. My point is that when mediation does work, the different approaches are good for different things.