Divorce mediation has long since left the dinosaur days of the 1960s and '70s. Then we had judicial settlement conferences with both sides present. How can you hobble "once more into the breach" when the judge has cut you off at the knees?
Now, we have directive mediations where the mediator pushes the parties toward his/her own solution. And we have facilitative mediators, who use the feelings of the parties, working their way to agreement in joint sessions. Some such mediators use their personalities to do what I call empathetic mediation. That is, being empathetic with both sides to urge the parties to work toward agreement. But the problem often comes up: How to get over the deadlocks that can arise.
In this article, I wish to explore new potentials to improve mediation, its strengths and its pitfalls; and the arguments for both sides to a possible resolution.
Problem
People get married for emotional reasons - love and all its varieties. People also get divorced for emotional reasons.
Lawyers representing the best interests of their clients have a duty to obtain the most advantageous results they can, but within the sometimes vague grounds of ethical responsibility. Advocates have forever used the weakness of the opponent to gain the upper hand for their clients. Even what a neutral party might consider unfair has often been considered "fair game" (hence the dubious reputation of lawyers in many circles).
Emotions and financial circumstances have always played a role in mediation. This has often presented mediators with a conundrum, particularly in facilitated mediations, i.e., is a party agreeing to an unfair settlement for an emotional reason (for example, fear of the other spouse). At best, the mediator can inform both sides of any unfairness and urge a fairer settlement. But the mediator cannot force the advantaged spouse to back off.
A far larger issue looms in the background. Psychological modalities and therapeutic methods have made giant strides forward. Lawyers have long lagged in their understanding of the psychological dynamics of separation and divorce. CLEs and general awareness are beginning to catch up.
It is increasingly clear that agendas of emotion often influence how parties mediate and settle their cases. A mediator must necessarily take into consideration the feelings of the parties regarding various issues - this is the essence of facilitated mediation. In the past, any proposal that a mediator should take into account the emotional and psychological dynamics involved would run headlong into fierce problems. A mediator is not necessarily a licensed psychologist and might be operating outside of his or her field of expertise.
An inconvenient truth remains - a divorce mediator is nonetheless dealing with cases that are largely driven by psychological forces. The give and take of mediation ultimately must come down to points each party feels willing to agree to. The underlying reason(s) why one or both parties feel they can agree to a particular result is rarely addressed.
History
I have long been intrigued by the reasons people often do what they do in a partnership, particularly when one or both of the parties decide to end the relationship.
After 44 years of handling divorce cases and studying their causes, I have become convinced that the deep causes are rooted in experiences of early childhood. Of course, the personality of the individual (which may be genetically influenced) and the situational stresses on the marriage often cause a marriage to crack and crumble. But the early childhood experiences of the male or female with each parent appear to provide a direct correlation in importance of influence. The correlation can be changed or enhanced by a number of factors - financial situation, health, human frailties such as infidelity, and the like. But the strength of the influence of early childhood experiences almost always is a primary influence.
At present, mediation must largely, if not always, ignore these realities. In either the directive or facilitative models (and their many subsets), the mediator cannot perform an analysis of the reasons why people decide as they do or what factors motivate them. Obviously, if spouses and mediators had greater knowledge of what each spouse actually wants and why each wants it, it would vastly simplify the mediation process. It would help each side to know what the other really wants and why.
While I cannot give examples of childhood influence, the primeval example of the potential of this method is a 1981 case over the issue of joint custody. Right in the middle of a multi-day trial, my client (the father) found out that the reason that the mother was contesting his claim for joint custody was that she, as a school teacher, wanted to make decisions regarding the child's education. When the father found this out, he immediately agreed. The case was settled then and there. Thousands of dollars were wasted. This is the case that inspired the Parenting Act.
Another example occurred years ago, with one of best mediators in the Seattle area. The parties were deadlocked over two separate properties, one real estate and the other an investment property with easier liquidity. The values were roughly equal. It occurred to me that easier liquidity might be more important to one than the other. I went to the mediator and the other attorney, both looking glum over the prospect the case wouldn't settle. I raised the prospect of easier liquidity. Everyone perked up. My client was not interested in the liquidity issue, and the other spouse did want liquidity. The case was settled. Since both spouses earned roughly the same income, the issue of liquidity was at heart a purely emotional one.
In both of the above examples, obviously by hindsight, I realized that the real issues were not readily apparent. They were emotional in nature. If a mediator could explore with both parties what issues are emotional and what issues are objective, the process of mediation could be vastly improved. Even more importantly, the parties involved in the process would feel more satisfied about the outcome.
But presently, mediators cannot do psychological analysis.
Proposal
From the examples given above, the reader might anticipate my suggestions. Protocols for using psychological models should be incorporated into the mediation process. There have been for some time specialists who deal with family relationships and conflicts. Where high conflict is anticipated, a trained specialist or psychologist could be used as a co-mediator. But the obvious problem is prohibitive cost for almost all cases.
A more practical solution could be CLEs for mediators where specialists or psychologists would give practical courses in conflict resolution. Experienced mediators also could share some of their experiences - and there could be cross-fertilization of ideas from all concerned. Guidelines concerning the number of hours of psychological training could be set by both the Bar and the Mediation Association.
This proposal is offered for discussion and exploration. I believe that this is an idea whose time has come. n
Porter Kelley is a Seattle-area mediator, specializing in dissolutions. Kelley was instrumental in adoption of the King County Child Support Schedule in 1975, the Washington State Parenting Act in 1988 and the King County Early Mediation Program in 1999. He can be reached at 425-747-9698 or porter.kelley@comcast.net.
