Many mediators come to the profession as a second career. There are a number of paths one can take to land in the mediation field. Usually, it is a professional services field such as a law practice, financial advising or mental health services. In all such professions, we are trained to provide advice in a direct manner. “Do this.” or “Don’t do that.”
In contrast, the mediation profession requires the mediator to be less directive. In fact, most mediation ethical rules canonize as scripture the concept of client self-determination. The outcome should be irrelevant to the mediator. It’s not the mediator’s case! Rather, the mediator’s goal should be the parties uncovering their own proposals and agreements based on their interests, needs and values. Outcome is always secondary to the hallowed principle of self-determination.
The Principle of Self-determination in Family Law Mediation
The Model Standards of Conduct for Mediators promulgated by the American Bar Association, American Bar Association and the Association for Conflict Resolution, provides:
“STANDARD I. SELF-DETERMINATION
- A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.
- Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards.
- A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.
- A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.”
(See more here.)
It’s important for mediators to avoid supplanting the clients’ right to self-determination. Remember, it’s not your case!
No Declarative Statements
It can be hard for professionals to realize that this is the client’s divorce rather than the professionals. We may have strong opinions about how things SHOULD be. But our opinion is largely irrelevant. Frankly, it isn’t up to the mediators. It is up to the clients and to what they can agree.
We know that it is hard to teach an old dog new tricks. Habits of intervening and telling people what to do are … well… habitual.
A few years ago, I participated as an instructor for a mediation training involving JAG attorneys in the U.S. Marine Corp. One participant was the groups commanding officer. This Major was used to telling people what to do and it showed when he did role plays. He had an awful habit of directing the client instead of paying attention to the clients’ interests and needs. This habit stifled idea formation and substantially reduced the quality of his mediation. He became frustrated that he couldn’t get parties past impasse.
As the instructor observing the role play, I intervened and instructed the officer to stop making declarative statements from that point forward. He could only ask open ended questions. No periods—just questions marks.
After an initial rough patch and some awkwardness, he started getting the hang of it. The asking of open-ended curiosity questions unlocked possibilities and encouraged idea formation. It enabled him to receive more information about the client’s interests, needs and values. He learned that his declarative statements shut down discussion and impaired his ability to facilitate the parties reaching their own agreements. Contrastingly, his open-ended curiosity questions facilitated the parties uncovering their own proposals, which were best for their particular case.
Only Open-ended Questions
Similarly, lawyers, in particular, should avoid asking “yes or no” questions as if the interaction were a cross-examination at court. Yes/no questions rarely provide much information and do little to encourage deep thinking and creativity.
For example, “Can you afford to keep the house?” is a less effective question than, “What would need to happen for you to afford to keep the house?” Here are some more examples:
| Less Effective | More Effective |
| Do you have a good relationship with the kids? | Please describe your relationship with the kids. |
| Do you want 50/50 custody? | What parenting schedule would you propose? |
| Is Dad a good parent? | What kind of parent is Dad? |
| Do you have enough retirement? | How much retirement will you need to be ok? |
| Wouldn’t it be better if you could work with Mom? | How would your life change if you could have a good working relationship with Mom? |
| Do you have time to pick up the kids on Tuesday? | What does your schedule on Tuesday look like? |
Open Your Mind to the Possibilities
Impasse is just a situation where negotiators lack creativity. The cure for impasse is creative brainstorming and an open mind. Often mediators think they know how a case should settle. But the skilled mediator who lets the client’s come up with their own solutions can be pleasantly surprised when the parties’ solution is superior to the mediator’s preconceptions. A little work to allow for open brainstorming and idea sharing can make all the difference.
In my mediations, I like to use a whiteboard for brainstorming. Often clients can get stuck in a false binary wrongly believing there can only be two possible solutions – my way or your way. With brainstorming, we list every possible scenario imaginable without judgment to come up with as many different ideas and options as possible. I may start with a wacky solution just to get the conversation going outside of the box. For example, if the parties are fighting over who gets to stay in the house, I might offer a solution of burning the house down. I am not seriously wishing the parties to consider arson, but I am planting a seed to get them thinking. With a little bit of work, the parties can fill an entire whiteboard with dozens of possibilities rather than the two with which they started. Sometimes what may have started as a crazy idea might be just the solution to solve their conflict. Most importantly, the ideas are theirs and they own the settlement.
Conclusion
Remember, while a mediator may control the process (i.e., the order of topics, the method of discussion, etc.) the parties control the outcome. The mediator letting go of the outcome is liberating for the mediator and empowering for the client. So, stop bossing your clients around! It’s their case. Let them determine the outcome. You will find your mediations will be less frustrating and more effective. Very importantly, your clients will be happier because they (not you) will own their settlement.
