It's a Real Tragedy that People Keep Conveying False and Misleading Information about Mediation

On May 16, 2016, Cathy Meyer published an article titled "6 Common Questions about Child Custody and Visitation."  

In my opinion, some of the information in this article is accurate and helpful, while other information is inaccurate and unhelpful.

One thing I particularly liked about the article was that it touched upon the issue of judicial bias in the section pertaining to gay or lesbian parents.  Judicial bias is a variable often overlooked in family law court (or in any court, for that matter).  

Unfortunately, however, when it came to mediation, that information provided was inaccurate and unhelpful.

For example, it states, "In California and a few other states, if the parties do not reach agreement, the mediator is usually asked by the court to make a recommendation. In most states, however, the mediator plays no further role if the parties can't agree. Mediators are very skilled at getting parents who are bitter enemies to cooperate for the sake of their children."

Mediation is a confidential process. Therefore, a mediator cannot make recommendations to the court.

Because those professionals working in Conciliation Court are not really mediators, the terms used were supposed to have been changed from "mediation" to “child custody recommending counseling” and from "mediator" to “child custody recommending counselor.”

Mediation confidentiality is sacred and therefore a mediator cannot use confidential information obtain in the course of a mediation and make recommendations to a court.

Seriously, is there any wonder why people are so confused as to what mediation is and how it works? Does the legal system and do attorneys deliberately cause such confusion in order to discourage people from handling their matters through private mediation? It really makes me wonder and I believe the misuse of the terms are deliberate to discourage mediation and to encourage litigation. However, what do I know?

The author also states the following: "If there is a history of abuse or the parents initially cannot stand to be in the same room with each other, the mediator can meet with each parent separately and ferry messages back and forth until agreement on at least some issues is reached. At this point, the parties may be willing to meet face to face."

That's true. However, I would like to highlight the portion I've emphasized in bold. Many separated or divorcing parents "cannot stand to be in the same room with each other." So what? Allow me to share an experience I had on July 5, 2016:

I had a one hour preparation for that mediation session with the parties and their attorneys from 12:30 p.m. to 1:30 p.m., when the mediation commenced.
Respondent's counsel asked if the mediation was going to be joint of if I was going to shuttle back and forth between two rooms.

I said that I will do whatever the parties and their counsel want, but that joint session is my preference by a long shot. Counsel said that he expected I would say that and was glad to hear it.

Petitioner's counsel asked if I was going to set any "ground rules." I told him that I don't like to set the rules and that if the parties and/or their counsel wanted to set any ground rules, that's up to them. The only ground rule Petitioner's counsel wanted was that each party not communicate through their counsel. I told him that I love that ground rule because I wrote an article setting forth my reasons why parties should not communicate through counsel in mediation. Respondent's counsel was uncomfortable with that rule because he was concerned that his client might need his assistance communicating certain things. I asked if that could be addressed, as needed, through private caucusing and he said it would.

We commenced mediation at 1:30 p.m. There were six of us present. Petitioner, Petitioner's counsel, Respondent, two counsel for Respondent, and myself.

The parties reached a number of agreements on previously disputed facts and a great many tears were shed by both parties. Counsel were visually uncomfortable with the expression of emotions and kept asking if the parties wanted us to leave the room or if they wanted to take a break. The parties didn't want us to do either. They just needed time to let their emotions out. They expressed how they felt and Respondent conveyed how she felt that she didn't even recognize her husband anymore, based upon how the case had been handled up to this point.

Petitioner then asked if we would all leave the two of them alone for a while. We all left the room and the couple spoke to each other in private for ten or fifteen minutes before calling us back in.

They thanked me for helping to re-establish their communication and for helping them to reach the factual agreements they had reached. They then said that at this point, they realized they could reach agreements on the remaining issues on their own and wanted to utilize their counsel on an as-needed basis.

All counsel handled their decision very well, Petitioner's counsel requested a "man hug" from his client and they all left together.

I would say that was an extremely successful mediation.

It bears mentioning that had the parties spoken through counsel or had been kept in separate rooms, I seriously doubt this result would have occurred.  For what it's worth, I was never asked to private caucus with anyone, once the mediation commenced.

During the pre-mediation, I did speak with each party separately, before such a request was made and that was the last time I did so.

Outcomes are typically determined by the way in which the "game" is designed, as I keep saying.