Recently, a friend called me from out of town and asked me about mediation. He and her wife are divorcing and he was having trouble negotiating with her. Although they are not really that far apart in their positions, nothing was happening because he and his wife had difficulty communicating. Since my friend couldn’t be objective, I thought he might not be the right person to start the negotiations. It is almost impossible to negotiate if one of the parties is involved and cannot see the “forest for the trees”. Since they were using a family mediator, I suggested that she talk to the mediator and negotiate. My friend’s response was a bit disconcerting; this mediator wanted the parties to negotiate with each other, which I found difficult to understand. That brought me to the topic of this article of “what does a family mediator do?”

A mediator is like an ombudsman who negotiates between the parties. To negotiate fairly and neutrally for both parties, a mediator must understand the needs of the parties. To make that determination, a mediator must have good listening skills, patience, tolerance, flexibility, creativity, and persistence, as well as the ability to manage conflict and empathize with affected parties. While listening to the parties, the mediator must also be very careful not to project her views or values ​​onto the parties and risk introducing issues that are none of her business.

Once the mediator has helped the parties narrow down the issues important to them, he or she will often meet privately with one party or the other to present the other party’s point of view. This meeting, known as a caucus, is private so that a mediator can question the position of one of the parties, without disparaging it in front of the other party. The mediator could challenge the party by pointing out weaknesses in her position, for example. Although this evaluative method is very useful in bringing the parties closer to an agreement, it also runs the risk of alienating the party. Often, if the mediator expresses the other party’s point of view too strongly, it can appear that the mediator is taking sides. This can usually be relieved beforehand; If the mediator includes some explanation of this evaluative role at the beginning of the process, the parties will know that what the mediator does to one, he will do to the other equally.

The mediator, as an objective third party, can often identify options that the parties might not think of for themselves. This creative component of the role of a mediator is one that most mediators enjoy. Conflicting parties often become so entrenched in their positions that they see agreement as nothing more than a weakness. The mediator, however, can often devise solutions that may incorporate elements of compromise and gain for each party. Being able to “think outside the box” is therefore a critical skill for an effective mediator. The mediator may go back and forth between the parties in an attempt to bring them closer to a consensus until a resolution is reached.

If an agreement is reached, the mediator must ensure that it is put in writing. However, that does not mean that the mediator must be the scribe. When the parties are represented by attorneys, the attorneys will usually draft the agreement with the mediator simply by making sure it gets done. If the parties are not represented, the mediator will usually also draft the agreement. Once drafted, each party must sign the agreement, which then becomes binding on the parties and enforceable. In family mediation, the agreement is called a Marital Settlement Agreement (MSA) and will include a Parenting Plan if children are involved. Once signed, the MSA is presented to the judge at a final hearing (like a trial), where the judge will incorporate the agreement into an order that the court can enforce.

While we are on the subject of what a mediator does, the question arises: what does a mediator not do? First of all, a mediator cannot practice law or any secondary profession that he has while mediating. A mediator must at all times be an impartial and objective third party whose sole role is to facilitate the mediation process.

The mediator is there to help the parties reach an agreement that they work out together. When the parties are represented, it is easy to let the attorneys answer any legal questions that arise. The most difficult scenario is when the parties are not represented. The mediator can provide the information required for the parties to make informed decisions. However, even if the mediator is an attorney, he or she cannot apply that legal information to the specific facts of the parties’ case and provide legal opinions. The only legal advice the attorney/mediator can give is that the parties have the right to hire an attorney to assist them with the mediation and the case. Similarly, if the mediator is a psychologist or therapist and finds that clients or their children require counseling during the process, the mediator may suggest that the parties receive counseling. However, even if the mediator is a counselor, the mediator should not do the counseling.

Whether the mediation is a divorce, contract, foreclosure, or any other matter, the mediator’s role is the same. He or she must serve as an objective and impartial third party to help the parties resolve their disputes. To do so, the mediator must identify and clarify the issues for the parties, evaluate and test the parties’ positions, try to find creative solutions that allow each party to win and compromise, and ensure that any agreement reached is put in writing. . Despite any additional training a mediator has, the mediator may not serve clients in any other capacity. Although still fairly new, mediation has become an important tool within our legal system for resolving disputes that saves people time and money and helps preserve relationships.