by Michael Aurit, JD, MDR
Articles about “Choosing the Best Divorce Mediator” may soon be more numerous on the Internet than the actual number of divorce mediators that exist in the world. Go ahead, Google it and be amazed!
Recently, I was asked to write one of these fine gems of guidance. In a first draft, I found myself falling into the “bullet-point-trap” by which such articles almost always catch the reader. When searching for a mediator, positives indicators of such traps, include: 1) Whether the mediator dedicates his or her practice to family mediation; 2) the extent to which the mediator has specific mediation and dispute resolution training; and 3) the mediator’s level of involvement in the mediation field. And, surely, these are good points.
However, the most compelling consideration for those searching for a mediator, or by mediators who inquire about the foremost quality that a “good” mediator should demonstrate, is likely not about training, experience, or professional background. In talking with my own mediation clients and with other mediators, I found that the most important consideration for mediation participants seems to be: choosing a mediator that they trust.
As family mediators, our response to the idea that “trust” is the paramount consideration for clients in choosing a professional is a first step in exploring the reflective question: “Am I a mediator that my clients trust?” Trust is earned on many different levels, and over time. Some indications of trust are felt in an instant. Others are built over an hour within a session, and others over months until the conclusion of the mediation process.
Foundational Trust in the Mediator as a Person
Initially, prospective clients in a consultation may closely assess the truthfulness of the mediator. There is only one way to earn basic trust on this foundational level of mediator truthfulness: Be honest.
Clients want a straightforward and objective explanation of the mediation process. They want to understand how it compares to litigation in court. They also want to be empowered with an accurate explanation of how you will work with them during the mediation process. This includes upfront transparency about total mediation fees, the mediator’s expectations of clients in mediation, and what clients can and should expect from the mediator. A simple, direct, and detailed Agreement to Mediate should be explained thoroughly to would-be mediation participants. Mediators might also consider suggesting that prospective clients take the time they need before moving forward. This is consistent with our core mediation values of informed consent and self-determination.
The delivery of honest communication also builds trust with clients. Earning deeper trust as a mediator depends upon the professional’s commitment to “speak from the heart.” When a mediator is genuine, caring, and true to his or her own personality with clients, the mediator’s authenticity can help create an environment of “realness” in the room. When mediator realness exists, clients feel the freedom to be more honest and vulnerable with the mediator and with one another. This is where the “real” work is done. It is where positions may evolve into interests, and where interests may crystallize into confessions about what people really want and need, and why.
At the 2015 APFM Conference, John Fiske described that a mediator’s objective is simply to “give the people a place to talk.” He went on and repeated it: “Just create a space for them to have a conversation—that’s all you have to do—give ‘em a place to talk.” It is a matter of trust in the mediator that allows that space to exist.
Trust in the Mediator’s Process
A mediator’s competence to guide clients through a strategic and steady process is necessary to maintain client trust during mediation. Prospective clients will often assess the extent to which the mediator has an organized process—some structure that will eventually lead to a successful outcome. Therefore, a mediator must be a “process expert”.
Process expertise comes first from understanding mediation theory. Ideally, practitioners should understand multiple mediation approaches, as no single one can rightly be deemed THE approach. A mediator becomes an expert about his or her own process by having the courage to practice and implement an approach in the mediation room that refines and reflects one’s own style and instincts.
One thing is for sure—without some overall framework to organize the mediation process, a mediator’s clarity is compromised. Clients generally sense when a mediator doesn’t know where he’s going next, and if the process feels disjointed or without direction. The uncertainty and internal chaos that a client may feel during family or divorce conflict begs for some “method to the madness.” Having an organized framework helps to build trust and confidence in clients that the mediator has the means to the end.
Joseph Stulberg and Lela Love originally trained me in the “BADGER” approach: Begin discussions; Accumulate information; Develop strategy; Generate movement; Elect separate sessions; Reach closure. The approach works to help the mediator navigate on a micro-level through individual issues, and on a macro-level as a framework for the process as a whole.
Stephen Erickson developed the first approach specific to family mediation for breaking down assets: identification, understanding, valuation, and division. Larry Fong has often described an approach echoed in the works of the great John Haynes; this approach involves the mediator’s consistent “thinking about thinking.” The mediator hypothesizes what is happening with the clients, asks reflective and reflexive questions to test the hypothesis, simultaneously causing the clients to “think about their thinking,” and strategizes to facilitate movement, while remaining neutral throughout.
My own approach incorporates moment-to-moment mindful hypothesizing and curious, caring questioning, within a general framework learned originally from the framework mastered by Chip Rose. I continue to modify this approach according to my own style: Identify the issue to be discussed; Engage initial thoughts; Give legal information about the issue; Generate creative options; Explore the benefits and consequences; Negotiate, if necessary; Reach agreements. However, admittedly, the “EGGENR” approach could use a catchier acronym.
Many different approaches have successfully lit the way for mediators and, in turn, provided the needed trust and confidence in the mediator for clients to feel safe.
Trust in the Mediator’s Alignment
For every article written about “choosing a good mediator,” at least 1,000 more about been penned about mediator neutrality and or impartiality.
The debate over their respective meanings and the importance of their application to mediator ethics, principles, and practice should continue on. But, the discussion should not produce a chilling effect on the degree of care and kindness the mediator can show for each individual client.
There may be a tendency in our profession for mediators to internalize the definition of neutrality or impartiality to the detriment of their clients. The idea of non-favoritism should not result in a mediator “keeping distance” from clients’ feelings, thoughts, and interests. It does not mean the mediator should restrain himself or herself from displaying any emotion. On the contrary, being human is essential to connecting with clients and developing trustful relationships.
The APFM Standards of Practice state: “A family mediator shall conduct the mediation process in an impartial manner.” Impartiality as defined by APFM means: “Freedom from favoritism or bias in word, action or appearance, and includes a commitment to assist all participants, as opposed to any one individual.”
It is absolutely imperative that family mediators read and interpret the language very carefully: “A commitment to assist all participants, as opposed to any one individual.”
For a mediator, as a non-partisan third party, to build trust with clients and maximize success in mediation, the mediator, as Larry Fong once expressed in an interview by Robert Benjamin for Mediate.com, must be aligned with everyone, and aligned with no one at the same time.
I propose that the mediator can experience deeper feelings of care for each participant’s feelings, thoughts, and interests—and show that care to participants—while being mindful not to care for any one individual’s feelings, thoughts, and interests over the other’s. Kindness can be demonstrated to each individual in the presence of the other. Empathy can be more than shown—the mediator may feel it.
As mediators, we work to ensure that each person’s voice is heard in the room. How can we maximize the ability for participants to feel freedom to use their fullest voice without a relationship built on trust that develops from care-based impartial alignment? Rapport alone is not enough.
A mediator in the trenches must feel free to engage with each individual in a way that elicits real feelings and true interests, while not favoring either individual’s interests. There is a fine line. However, we may approach it in a way that both participants’ interests are met to the highest degree possible, proportionally, and by mutual agreement, where common ground can be found.
Acute mindfulness of the mediator that creates a constant internal acknowledgement and awareness of mediator bias is the only way to find the balance to keep moving forward on the tightrope of impartiality. This is perhaps the greatest skill for a mediator to continue learning, and the most important mediator quality to deepen trust with clients.
How should those in the market for a mediator choose the “Best?” For other possibly legitimate considerations, Google it! But in the end, it’s a matter of trust.
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Michael Aurit, JD, MDR is a professional divorce mediator, and Co-Founder of The Aurit Center for Divorce Mediation in Phoenix, Arizona. He serves on the Board of Directors of the Academy of Professional Family Mediators (APFM). He is a Fellow of the Dispute Resolution Section of the American Bar Association (ABA-DR). He is also a member of the Association for Conflict Resolution (ACR), and Ethics Chair of the Maricopa County Association of Family Mediators (MCAFM). He holds his Juris Doctorate from Pepperdine University School of Law and Master’s Degree of Dispute Resolution from the Straus Institute for Dispute Resolution at Pepperdine. To learn more, visit AuritMediation.com or contact Michael at [email protected].