by Steve Erickson
Professional Family Mediation is not about adjudication, evaluation of who has a stronger or weaker case, coercion, or predictions of outcomes if the case goes to court. It focuses on the self-determination of the parties. The answers and the solutions to the conflict are found, not by the mediator, but by the parties themselves who hire the mediator.
This Standard of Practice that expects the mediator to respect the self-determination of the parties is, on the one hand, the genius of family mediation, and, on the other hand, the mystery of family mediation. “How is it possible to move people in conflict to settlement if you aren’t supposed to push on them – hard – sometimes? And, what exactly does a mediator DO?” Indeed, it is a mystery. The answer, of course, is that we do not push – we talk with the parties, they talk with each other, and things are discovered.
I once had a husband say to me that I would make a good “guide dog.” Since that time, I have often watched this owner-dog relationship and wondered who is the leader, and who is the follower. I rather like the analogy in that if, unfortunately, one needs a guide dog, the owner decides where they want to go, and the guide dog safely gets them there. It is a bit like a partnership.
In a mediation process that respects the self-determination of the parties, it is also a partnership that encourages the parties to decide the destination. Although we are occasionally asked, there is really no need to predict the destination that the court has for them, because nobody can really be certain what the court outcome would be. Sure, we might talk in the mediation room about the court’s standards of fairness, as well as the inadequacies of cookie-cutter solutions, like the same child support formula applied to everyone. Yet, parents mostly worry about how they will survive as their partnership is ending. We have found a non-adversarial way of helping them survive and move past the conflict, whether it be past a crushing impasse or past a need for simple help about planning the future. And, we also educate them about what they need to know to reach the end of the journey.
We do this not by pushing or coercing, but by creating an environment where it becomes easier for the couple to find the solution themselves. For example, by not asking the “custody” question, we avoid framing a contest over who is the better or worse parent. Instead, we ask “What are the future parenting arrangements the two of you can agree on so that both of you can be the best parents possible, even though you will be living separately?”
Likewise, by not telling them what they can expect to pay or receive as alimony, we avoid evaluating outcomes in court, or predicting what a judge might award. Instead, we ask them to create a budget of expenses, and then, since mediators are good at narrowing the issue, we break down the alimony question into its smallest pieces. To get to a resolution about alimony, we ask three questions: First, “Do you both agree that one of you is currently completely or partially dependent on the marriage relationship for support?” Second, “Do you both agree that a goal of our discussions is to increase the self-sufficiency of the less income spouse?” And third, “What plan can you agree upon that will achieve lessening the dependency or eventually eliminating the dependency altogether?”
Throughout their journey with us, we give clients guidance and help, just as a good guide dog would. In the area of child support, instead of telling them that they are required by law to fit into a set of child support guidelines that are applied to every single case in the state, we give them the freedom to create a child support plan. In my own practice, I tell parents that they may choose – if they wish – to deviate from the guidelines in order to better fit their own particular financial situation. If they wish, they may even use a joint checking account that is shared and used by both parents to manage and pay for the children’s costs. This joint checking account may be contributed to equally or on a pro-rata basis according to each of their incomes, or any other ratio agreeable to each.
There are many other examples of how a Professional Family Mediator can offer guidance without pushing or pulling too hard. In the end, it is the clients’ decision. They, in the mediation room, will create their own standard of fairness, provided they are given good assistance. More often than not, they decide to equivalently share the burdens of divorce and separation, rather than turning them into a contest.
As a good guide dog also knows, it is the person at the other end of the leash who is really in charge. This is the genius of the Self-Determination Standard.
Stephen K. Erickson, J.D., is one of the founders of the original Academy of Family Mediators, started in 1980, and is a Founding Board Member of the Academy of Professional Family Mediators. He has practiced exclusively as a family mediator since 1980. He also helped create the first 40-hour divorce mediation training that took place in 1981, and he continues to write, teach and mediate.
This article was originally published in The Professional Family Mediator, Winter 2013.