by Steve Erickson

 

 

By the time the Academy of Professional Family Mediators was founded, professional family mediation badly needed an organizational home-base.  Even though tens of thousands of divorce cases are kept out of court every year by mediated agreements, family mediation has not yet reached its full potential as a separate profession.  There are still many mediators who believe that successful mediation mainly requires process skills, and that substantive knowledge is not very important.  Other mediators (especially divorce lawyers who mediate as a sideline to their law practices) are excessively focused on the “legal” substance at the expense of a more inclusive process.  But process vs. substance is a false dichotomy – professional family mediation requires the skills and knowledge of both, and at a high level.  Indeed, a creative use of substantive options is an excellent process idea.  APFM can take the leadership in setting professional standards for the entire field of family mediation, just as the American Academy of Matrimonial Lawyers[1] has done in the field of family law.

Family mediation has the potential to do much more than just replicate what legal procedures offer.  Parties can do many things in an agreement that a court does not have jurisdiction to do, such as (in many states) to make provisions for college for adult children.  Often, mediation clients suggest creative options that go well beyond the law, or these are suggested by the facts of the particular case.  There is far too little explicit future planning in adversarial divorce settlements.  Courts only have power to settle those aspects of cases that fall within the scope of their jurisdiction, but they often lack both the jurisdiction and the expertise to deal with the full range of relevant issues in divorce settlements.  Mediation can do both, through fair, creative and practical agreements.

When we demystify the law, as we should, it will be less difficult and more interesting for therapists and financial planners to deal with the legal parameters, including drafting agreements.  Other professionals could help make it easier for attorneys to better understand areas such as separated parenting, child development, the emotions of the divorce process, and the goals of short-term and longer-term financial planning.  There are also other important areas of expertise, such as career adjustment and planning and the tracing and valuing of assets, with which all mediators need to gain familiarity.  If therapists, financial planners and other professionals are no longer intimidated by the legal system, and lawyers and judges stop assuming that they alone hold most of the substantive knowledge, the profession of family mediation can open up to its full potential.

Let’s look at some of the specifics:

Parenting

The first clue to the lack of expertise in the legal system is the use of the outmoded terms “custody” and “visitation.”  Mental health professionals that have experience with children whose parents are separated or divorced and are also familiar with the stages of child development and the many individual needs of children through divorce, are often the best experts.  What is lost so often in the adversarial system is the importance of promoting cooperative long-term parenting relationships.  That is exactly what the adversarial system is unlikely to foster and most likely to impair or even destroy.

Child support

The advent of child support guidelines in the mid-1980’s has changed forever the law of child support by making it fairer and more uniform, both among different cases and among the various states.  Everyone who works with divorce settlements should take courses in the guidelines of their particular jurisdiction and possess the software to make calculations under those guidelines.  But we also need to identify those situations where the guidelines don’t work well and to be aware of the alternative ways of setting up child support.  The mediator should always make sure that clients who have minor children are made aware of the guidelines, but they should also be told that generally they don’t have to follow the guidelines in any particular agreement.

Spousal support

Every adult is responsible to do what he or she reasonably can to provide for, or at least contribute to, his or her own support.  This principle is balanced by the reality that one party may suffer a short-term or even permanent career disadvantage due to the financial circumstances of the marriage and how the spouses divided marital responsibilities.  Formulas for spousal support are much less likely to be used than those for child support, and they are less authoritative when they are used.  Budget planning is a vital requirement in many cases involving support.  Mediators need to know more about are the educational and career alternatives for someone who has been out of the full-time job market for years.  The expert here is a vocational specialist, a professional whose services should be used more frequently.

Equitable distribution

At the technical level, there are some important differences in the family law from state to state, and a family mediator should be aware of these in her or his own jurisdiction.  By far, the most common assumption is that money and property acquired by the efforts of the parties during their marriage are divided equally upon its dissolution, with the frequent exception of inheritances and separate outside gifts.  However, there is plenty of room for options, tradeoffs and implementation of plans that do not necessarily follow the law.

Five kinds of challenging property situations may require an outside expert, usually an accountant, even in court cases.  The five situations are: (1) tracing separate property that has been commingled with marital property; (2) tracing marital assets alleged to have been dissipated; (3) valuing a professional practice or a closely held business as a marital asset for settlement purposes; (4) sorting out the responsibilities of each party for marital debts and making recommendations for debt management, and (5) making certain that there has been a complete, current and accurate disclosure of all marital assets and debts.  When any of these situations exist in a given case, consideration should be given to involving an impartial expert.

Financial planning

When marriage ends, the parties should consider working out a financial plan for present income and expenses and a more comprehensive plan for the future for each of them, all the way to retirement.  But, this happens all too rarely and the adversarial process does virtually nothing to encourage it.  Whenever possible, the financial plans should be done cooperatively.  If just one party to a divorce consults a financial planner, the advice is likely to be directed only to her or his separate needs, which may not be practical when the overall financial situation of both parties is considered.  A mediator who is not a financial planner should always consider whether involving an impartial financial planner might be appropriate to assist both parties in making consistent and practical short- and longer-term financial plans.  This can even be a useful conflict resolution technique in some cases.

Using “people” skills

“People” skills are the various ways that helping professionals (including attorneys) have developed to relate effectively to clients.  These include active listening, reading body language, knowing when and how to use open-ended questions to elicit information, being able to deal effectively with anger and defensiveness, creating a safe environment for clients, maintaining professional boundaries, and the appropriate use of humor.  Mediators add to these a wide range of conflict resolution techniques, ranging from the ideas in “Getting to Yes”[2] to the Thomas-Kilmann model[3], and many, many others.  How mediations are organized is often important to their success.  Common skills are found throughout the helping professions, but they are often implemented and supplemented in different ways in each.  The most useful “people” skills of a professional family mediator are a different mix from those of any other helping profession.

Drafting the agreement

The goal of the mediation process is the development of a legally enforceable agreement, so careful thought needs to be given as to how it is to be drafted.  Unfortunately, no profession has anything close to a monopoly on good drafting.  Attorneys should be the experts on drafting, but too many lawyers still draft a settlement agreement as if it were a corporate contract from half a century ago.  Revising a mediated agreement should be a collaborative exercise among the mediator, the clients, and at times their attorneys, so it has to be both readable and accurate.[4]  The primary cause of bad drafting is outmoded office formbooks.  There are not nearly enough courses in drafting agreements for mediators.  It should not be considered the unauthorized practice of law for a properly trained family mediator of any profession to draft the resulting agreement.

Collaborative practice

Family mediators who have not been certified for collaborative practice should consider doing so.  Collaborative practice is open to most, if not all, of the members of APFM.  Collaborative practice groups are excellent places to make contacts with other professionals.  Everyone who is certified for collaborative practice also must have basic mediator training.  Many collaborate practice groups have regular meetings for the exchange of ideas and information among like-minded professionals.  Mediation and collaborative practice are in a sense competitive, but they both represent a similar professional broadening of the field of marital settlements beyond the purely legal.  They both demonstrate respect and consultation across professional boundaries.  Nothing prevents using an impartial mediator in a collaborative case or having collaborative attorneys represent the parties in mediation.  Both processes are open to integrating impartial experts, such as financial planners, accountants and vocational specialists, as needed.

Attorneys as family mediators

Attorneys with substantial experience in settling cases in the adversarial process have a good working knowledge of substantive trade-off options.  That is how most cases are resolved out of court in the adversarial system.  At its best, experience in the adversarial system is what enables a divorce lawyer to understand both sides of a case, to be aware of settlement options, and even to acquire instincts that work well in mediation.  But there are five areas that lawyers should consider as possible obstacles to the most effective and comprehensive mediation: (1) excessive focus on the formal legal framework; (2) inappropriate use of “what the court might do” as a cop-out; (3) lack of openness to learn from other professions; (4) insufficient attention to the differences between mediation and law practice, especially at the level of relevant process skills; and (5) failure to recognize the full potential of family mediation.  Very few family lawyers who do mediation have considered it important to affiliate with mediation organizations such as the Academy of Professional Family Mediators.  As the legal profession continues to move toward greater use of mediation, APFM can help attorneys broaden the scope and goals of their mediation practices.

The Professional Family Mediator

The founders of APFM merit lots of credit for finally putting family mediation on the proper track to be a recognized profession.  Rod Wells deserves our gratitude for his excellent job of leading APFM in the right direction in a crucial year of transition.  So does Don Saposnek, for developing and editing The Professional Family Mediator.  The members of APFM are an impressive group, both for experience and for professional diversity.  The past and upcoming annual conferences and the periodic teleconferences also demonstrate an organization in good hands, moving in the right direction.  No other single profession comes even close to possessing all of the skills and knowledge of the “professional family mediator.”  It is most appropriate that APFM is actively working on standards and procedures for certification.

Jim Coogler[5] used to say that mediation can solve problems, while courts only decide cases.  So let us define the challenge as not just to achieve a fair and workable agreement to keep the case out of court, but also to promote cooperative parenting and sound financial and career planning post-divorce.  Then, let us identify the process skills and substantive knowledge that are relevant to those goals, and help all family mediators who wish to do so possess these at a very professional level.

 

[1] Check out their website at http://www.aaml.org.

[2] Fisher, R., Ury, W. and Patton, B. (1991). Getting to Yes: Negotiating Agreement Without Giving In. Second Edition. New York: Penguin Books.

[3] For further information on the Thomas-Kilmann Conflict Mode Instrument, see www.kilmanndiagnostics.com.

[4] Here is a short course in drafting readable marital settlement agreements:  Choose a simple title.  Use the parties’ and children’s formal first names (or nicknames if they prefer).  Stay in the active voice.  Eschew archaic words.  Translate technical terms.  Avoid repetition and obtuse language.  Keep sentences and paragraphs short.  Stay clear of long provisions dealing with hypothetical situations that are unlikely to occur.  Use general terms where appropriate.  Be specific where you need to.  And always, always try to be clear and concise.

[5] O.J. Coogler founded the first national organization for family mediation, the Family Mediation Association, in the late 1970’s.  In 1982, the American Bar Association awarded him a gold medal for his work.

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Stephen K. Erickson, J.D., was one of the founders of the original Academy of Family Mediators, started in 1980, and was a Founding Board Member of the Academy of Professional Family Mediators in 2012. He has practiced exclusively as a family mediator since 1980. He also helped create the first 40-hour divorce mediation training, which took place in 1981. He continues to write, teach, and mediate.

This article was originally published in The Professional Family Mediator, Summer 2013.

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