Over the years, I have often asked individual lawyers whether they ever refer cases to mediation. They almost always say yes – they regularly refer cases to a group of retired judges. That answer means they do not know how real mediators work. The service the retired judges offer, which they call mediation, should be called a facilitated settlement conference.
Sadly, many honorable family lawyers with good intentions simply do not know that what retired judges do fails to meet the criteria for ethical family mediation established by the American Bar Association, the Academy of Professional Family Mediators, and the Association for Conflict Resolution.
In a divorce case or other family case, real mediators ordinarily meet with both clients together. Having the clients’ lawyers present is optional. Retired judges send the two clients to separate rooms, accompanied by their lawyers. This means that the two clients will be paying three professionals for each hour of “mediation” — two lawyers and one retired judge. Paying just one professional, a skilled mediator, makes more sense for most people. You can get advice from an attorney and not need to pay them to attend your mediated negotiations.
Working with a retired judge not only involves more professionals, it also requires more time because the judge is practicing shuttle diplomacy, talking with one client at a time, and carrying proposals back and forth. During mediation with a member of Colin Family Mediation Group, you might sometimes have “caucus” sessions for short, separate meetings with your mediator, but most of the time you would be together. That is a more efficient way to communicate.
Retired judges usually expect you to be prepared to present your case almost as if you were arguing in a courtroom for the outcome you prefer. In contrast, real mediators can get involved much earlier and help with your first thinking about the best way to move forward. Real mediators help clients listen well to each other, express their thoughts clearly, and consider new ideas that arise during the discussion. Sometimes creative new solutions unanticipated by either client arise.
Retired judges often pressure clients to stay in session until the matter is settled — all morning, all afternoon, and sometimes all evening and into the night. Real mediators do not pressure their clients. If the clients are satisfied with their progress in a meeting and want to go home, think things over, and meet again after a few days or weeks, that is fine.
A retired judge often listens to the evidence and arguments presented by each client and then tells you how he would rule on the case if you were in his courtroom. This creates pressure to accept that decision, even though a different judge might rule differently. Some clients give up and settle for what the judge proposes. When we mediate, most of our divorce clients succeed in creating agreements that are OK with both parties.
Divorce clients can choose to work with a family mediator who will help them develop the best plan they can make for their children and their finances, or choose to work with a retired judge who will probably guide them to the settlement he would order. The choice is yours.
For more information, visit ColinFamilyMediationGroup.com.