Mediation is Voluntary and Neutral

The In-Your-Face Deed

The following is based on a case of mine which was recently discussed in the book Mediation Ethics, edited by Ellen Waldman (Jossey-Bass, 2011).

Mary, a social worker, and Tom, an executive, are divorcing. They have two children, a boy, age 6, and a girl, age 8. Mary is willing to be flexible about sharing the children but believes Tom’s demand for half of the parenting time is unrealistic. She prefers a schedule for Tom of alternate weekends, with one weekday evening, while Mary has the intervening weekend and all of the weekday overnights. Mary has been quieter during the mediation, as Tom can be very verbal and appear inflexible in his views on the children and their best interests. It is unclear whether Mary is going to oppose Tom’s firm “position.”

Tom and Mary own the family residence and a rental home. They both would prefer to stay in the family residence, although the rental could be a decent home for one of them and the children. Tom is the higher income earner, with a history of managing most of the family finances. However, his company is cutting back and he is worried about the security of his position.

At the start of the third session, Tom announces that he is really stressed by the financial pressures of paying for the family residence, dealing with the rental, and supporting Mary and the children. He states that he has a generous global settlement package to propose, as follows:

• He wants the family residence and will give Mary the rental property.
• He will defer to Mary’s requested parenting schedule and not fight over the children.
• He will pay her child support and alimony in an amount he considers generous.
• She must accept his proposal at this mediation session; otherwise he will withdraw it, go to court and fight her on all issues.
• He informs her that he has brought two Quit Claim deeds with him, one for Mary to sign the residence over to him and one for him to sign the rental over to her. He states that he has hired a “Notary on Wheels” who will arrive at the mediation office in one hour, and he insists that she sign the deeds today.

Tom then tells the mediator to meet alone with Mary to explain his proposal to her, to explain how generous it is and the wisdom of accepting it today, rather than going to court. He gets ready to leave the room so the mediator and Mary can caucus. He appears very stressed and says he just wants to get this over with, in order to get the finances under control.

Neither party has a lawyer. At intake, both parties denied any allegations regarding domestic violence, although the mediator is now concerned that Tom may solve problems through intimidation and wonders how far that has gone. On the other hand, the mediator thinks that the deal may actually be a generous one for Mary and might help her get out of this relationship faster.

What would you do?

I received four reader responses, which I will quote, in part, here:

Sheldon E. Finman, APFM member in Florida wrote: “…The mediator has a duty to insure a level playing field. Tom’s ultimatum is out of line. I would keep that thought to myself and ask Tom to tell us what he is thinking, where his thoughts are, how his proposals might work for him and for Mary and for their children. I would want to get him to start talking and have a dialogue. I would tell Mary I will be asking her questions shortly after I was able to ask Tom a few questions. I would not caucus at this time.”

“…I would want Tom to understand that mediation is not a traditional positional negotiation in my view and practice preference, but a facilitative process which allows complete freedom of choice to both sides after compiling all facts and information and developing options. I will tell Tom it is not my role to tell Mary to do anything and certainly not to accept or reject any offers….I will let him know I am not evaluating his proposals, which in the end, might be very fair, and even overly generous. However, the process has not had an opportunity to take place [yet].”

Rachel Green, APFM Member in New York wrote: “First, I would reflect back to Tom his evident desire to ‘get this done’.  I would normalize these feelings by telling them both that virtually everyone who comes into my office wants this done last week, at half the cost, and that this can be a difficult and painful process, which is one of the reasons that mediation is not right for everyone…Tom has come in with some ideas for settlement, and certainly I share his hope, and I’m sure Mary does too, that we can come to a swift resolution of all open issues between them.”

“Next, I would say something like, ‘Mediation is not for everyone.  It requires that you be willing to sit in the room together and listen to the other’s point of view.  (ToTom) If you are not willing to give Mary whatever time she needs to think about and respond to your proposal, then you are not open to truly listening to her point of view, and this makes me question whether mediation is the right process for the two of you.’”

“’Tom, by announcing that you are going to leave the room, and by asking (ordering) me to convince Mary of the wisdom of accepting your offer, you are asking me to become your representative, and to argue with Mary to convince her to accept a particular result.  But, as your mediator, that is not my role’.”

“At that point— if Tom agreed to stay— I would turn to Mary and begin to work with her, to elicit her responses to Tom’s proposal, her thoughts, ideas, feelings, about both of the properties, her financial needs (hopefully in light of expense forms that both already completed)…I believe pretty strongly that the only way to have an ethical mediation practice is to be conscious and honest about the fact that everyone can’t mediate – and to know when you can.”

Linda Gryczan, APFM member in Montana wrote:  “Congratulations and many thanks for all the work involved in forming a new (and more responsive) organization.  

“Before Tom leaves the room, I would explain to him that as a neutral, I am not going to try to “sell” the proposal to Mary.  I would ask him if he would like to stay and explain it himself, or take a break first.  Perhaps I would caucus to see why he is so anxious.  After the proposal is on the table, I would remind both parties that they are making decisions that will affect them for the rest of their lives.  ‘Do you both know what you are gaining in this proposal?’  ‘Do you know what you are giving up?’  ‘Do you know how it will affect you now, and in the future, especially at retirement?’  ‘How does this suggestion for child support match with this state’s Child Support Enforcement Division (CSED) calculation?’  ‘Since no one knows the answers to all of these questions, ethically, I must stop this mediation, and ask both of you to invest in an hour with separate attorneys.’  ‘Tom, thank you for presenting such a well thought out proposal. Could we meet in two weeks after you have answers to these questions?’  ‘If you both fill out this CSED affidavit, I can calculate child support according to what the state requires.’”  

Susan Zaidel, APFM member in Haifa, Israel, wrote: “While I agree with Bill Eddy that ethical issues often are ‘on the edge’, and not clear-cut, the example presented about Tom and Mary is hardly ‘on the edge’, in my opinion. Mediation is not simply negotiation in the market place, where anything goes. It is a process with clear guidelines about the need for relevant information on the table and with the need to be understood by all before the parties make decisions. Even more essential to the mediation process is the absence of threats or pressure. In any legal agreement, for that matter, one of the clauses states that the agreement is being signed freely, without any pressure. These points are inherent to the mediation process and the mediator must be sure that they are fulfilled.”

“The issue is not whether Tom’s proposed package deal is a good one for Mary or not, or what her chances are in a court-imposed divorce. I would not allow parties to agree about property division without first obtaining objective data about the actual monetary value of the properties and any other relevant information.” Alimony and child support should be based on actual needs— and must be specific amounts—certainly not on what the husband considers to be ‘generous’.

“Tom clearly is trying to control the process and the outcome of the mediation, both of which are unacceptable in terms of my understanding of mediation.  Going to court is always an option but is not to be used as a threat to pressure the party that prefers to avoid litigation. Even parties who are not represented have the right, and should have the opportunity, to consult with an attorney before signing a divorce agreement. In any event, they should have time to think about any given proposal and to consult with others (whether professionals, family or friends) before signing an agreement.”

“While no one can prevent Tom from ‘bull-dozing’ Mary into an arrangement that he dictates, this should not occur in the context of mediation with a professional mediator.”

These responses emphasize two of the most central ethical points about the mediation process: It is voluntary, and the mediator is neutral. What I liked about all of them is that they made an effort to patiently explain the process and these values, rather than criticizing them for not understanding these principles of mediation.

Since this was an actual case of mine (with names changed), I’ll let you know what I did. I explained to them both together that I appreciated their urgency and frustration. However, there would have to be time for Mary to think about Tom’s proposal— at least 24 hours, with time to get consultation—and that any deed that was signed today would likely be easily set aside as not voluntary (educating them about consequences),  so I would not allow it to occur in my office today (setting limits).

I agreed to then meet separately, as Tom had requested, and I encouraged Mary to get outside advice on Tom’s proposal, which I said might be a good one, but it would take time to analyze. I also asked her if there was a history of coercion from Tom, and, while she denied it, I was skeptical. I recommended that she consult with an attorney to help her deal with Tom’s aggressive energy and to analyze his proposals. Then, I met with Tom and empathized with his frustration and encouraged him to also consult with an attorney to help him explain the benefits of his proposal to Mary. We scheduled another mediation session.

Afterwards, I heard that Tom continued to be very demanding, so, while in court, Mary’s attorney obtained a restraining order against Tom and he ran out of the courtroom before the hearing was over. I had encouraged them to return with their lawyers, but they never came back.

I wondered if there was something else I could have done, or whether keeping them together in the session might have produced a different result. However, I agree that some cases cannot be mediated and that a level playing field is an essential factor for mediation. Sometimes, we have to set limits to ensure the integrity of the process – especially when one (or two) clients lack the most basic impulse control.

On the other hand, more recently, I have had similar mediations with lawyers present who are “mediation friendly” and/or with restraining orders and certain safety precautions in place, that resulted in successful outcomes.  I am pleased to say that the case of Tom and Mary was just one of the rare times in which saying “You can’t do this in my office” was necessary.

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Bill Eddy, L.C.S.W., J.D., has been mediating family disputes since 1979. He is a therapist, a lawyer and the Senior Family Mediator at the National Conflict Resolution Center in San Diego, and he is a Founding Board Member of the Academy of Professional Family Mediators. As President of the High Conflict Institute, he provides training in managing and mediating high conflict disputes. He is the author of several books, including High Conflict People in Legal Disputes. His website is: www.HighConflictInstitute.com.

This article was originally published in the Fall 2012 issue of The Professional Family Mediator.