by Laurie Israel
Mediation is not one monolithic technique. Mediators and mediation theorists may categorize different types of mediation techniques into different theoretical boxes, such as “facilitative,” “evaluative” and “transformational.” But the categories all seem to bleed into each other.
At its core, mediation has as much variety as there are mediators, mediation clients and issues being mediated. Because of this variety and variability, mediation seems more like art than science, with unpredictable pathways through the process, and surprising results, if the mediator gives the clients space to evolve in their understanding of each other and the dispute.
There are various philosophies that swirl around mediation. One says that mediation is “client-directed.” Whatever the clients want, that’s what the mediator arranges in settling the clients’ agreement. The problem with client-directed mediation, is that the skills, background, and experience of the mediator are discounted and not taken advantage of by the clients.
This is true especially in an area such as divorce mediation or prenuptial agreement mediation, where the mediator (generally) has extensive knowledge of the operant law and the possibilities of resolution for each of the issues involved. There is no reason to expect a mediation client to be an expert in divorce law or the laws pertaining to prenuptial agreements. An understanding of these laws are important for the clients, and can enlighten and enrich the process of dealing with the practicalities inherent in ending a marriage or formulating a prenuptial agreement.
But what about that mediation rule that mediators are not supposed to give legal “advice” during the course of a mediation, but can provide legal “information.” What is the difference between legal “advice” and legal “information”? That’s a slippery slope that all mediators deal with on a daily basis.
A mediator cannot pretend that he or she knows nothing about divorce law or the law of prenuptial agreements. That would be absurd, because many of the issues that the clients are addressing are legal ones, and certainly, the clients are not supposed to be experts in the law. So, legal information must be rendered by the mediator, at least initially, subject to input by the clients’ reviewing attorneys (if they have any).
What about the “elephant in the room” that sometimes comes up in mediation? This is the little but very important fact that is unsaid, but lingers in the background, infusing the entire mediation with an element of untruthfulness. That elephant may need to be acknowledged and discussed openly in order to have all the relevant information accessible to make a well thought-out agreement by the clients.
How, when (and should) the mediator bring up the “elephant in the room”? Some of these elephants are quite large and important. Not saying something reminds me of the Hans Christian Andersen tale “The Emperor’s New Clothes.” We as mediators frequently face this issue. Should the mediator say something when he or she sees something, even if the clients have not brought it up, like the message in the subway, “If you see something, say something.” Or should the mediator remain silent until (and unless) the clients bring it up?
Clients engage us as mediators for many reasons. Sometimes they simply view mediation as a money-saving way to resolve their dispute. At times they choose us because they are afraid that engaging attorneys will make their disagreements more difficult to resolve and may be detrimental to their ongoing relationship. They generally, carefully choose their mediator based on the mediator’s experience and background, and also their sense of whether the mediator’s personality and approach will be compatible to theirs.
Mediation clients don’t choose a computer program or a machine. They choose a real person, with intellect, his or her own background and experience, and knowledge of the operant law in their dispute or issue. How silent should the mediator be in the process? When should the mediator follow and when should the mediator lead? Should the mediator say the “truth” as he or she sees it when an issue comes up that the parties may not understand clearly? Or should the mediator remain silent?
The danger being a “truthsayer” when you’re a mediator, is that your “truth” (sometimes unbeknownst by you) may support or give the appearance of supporting the position or view of one or another of the clients. This can happen even if the connection between the “truth” said and a party’s position is quite attenuated, because mediation clients can sometimes be very fragile. As a result, the mediator becomes tainted with perception of bias or lack of neutrality. Usually, this immediately ends the success of the mediation. So being a mediator “truthsayer” can pose great risks to the process.
However, there are also strong benefits for saying the “truth” as you see it, at least sometimes. Mediators often try to appease both sides of the mediation. In doing so, the mediator can be perceived as untruthful, and both sides can lose respect for the mediator and the mediation process weakens. For this reason, a word of “truthfulness” by the mediator can have a powerful effect in mediation — perhaps leading to a resolution, even if it temporarily seems to support the position of one side rather than the other. Both sides can feel like there is a person in the room that can provide feedback that can help them resolve their dispute.
The mediator’s truthfulness should always be balanced with a demonstration of support and respect for other mediation client and should include an explanation of why the mediator sees the issue that way. It’s dangerous, but can move things strongly forward.
If it’s done in a non-threatening way, the other party will also have a chance to express and clarify his or her view. As a result, greater mutual understanding on the issue by the clients can occur. Even small changes in view might lead to resolution on the issue and could have a ripple effect to lead to other agreements in the mediation. Bringing the parties to agreement may be better served by an active mediator, even though much of the activity might be subtle.
The most important factor in mediation success and not allowing the mediator’s “truth” derail the process is that the mediator has respect for both clients. This respect should be evident and actual — demonstrated by words, listening, comments, and structure — or else the moment of “truth” might be too dangerous.
In this safe setting of respect, when the mediator offers his or her “truth” in the right way at strategic times in the mediation, the small changes and cumulative understandings that can make the mediation successful can be greatly facilitated.
© Laurie Israel 2013
by Laurie Israel
During the past quarter century, academics and others writing about mediation have characterized styles of mediation as belonging to one of three categories: “facilitative”, “evaluative” and “transformative”. The categories are quite clearly defined.
“Facilitative” mediation (the original type which started to be broadly practiced in the 1960s and 1970s) involved a process designed to help clients come to agreements. Often this was practiced in volunteer mediation organizations dealing with small business or “neighbor” disputes. The mediators tended to be trained in mediation, but not generally trained in substantive knowledge of the area they were mediating.
Facilitative mediation has matured so that mediators are now not only trained in mediation, but often are familiar with the substantive law pertaining to the dispute that is the subject of the mediation. Facilitative mediators range in their views as to how important the substantive “law” is to mediating a dispute.
Facilitative mediators use standard mediation practices such as finding the interests behind the parties’ positions, reframing, active listening, validating points of view, defusing “hot” speech and helping clarify communication misunderstandings.
Facilitative mediation is goal oriented, the primary goal being for the parties to come to agreement. Traditionally, attorneys are not present during the mediation sessions. Sometimes there are “caucuses” in which the mediator might meet separately with one or the other party.
The clients make their own decisions, with the mediator “facilitating”. The mediator structures the process, and leads (sometimes very subtly) the parties towards resolving their disputes. The facilitative mediator does not give advice, nor does he or she intersperse the mediator’s own views into the mediation.
The second type of mediation is called “Evaluative” mediation because the mediator’s role is to evaluate the dispute presented to him/her through the lens of existing law. This mediator sifts through the “facts” of the dispute and seeks to predict how the dispute would be decided by a judge or jury if brought to court.
Often evaluative mediation is entered into after a court case is in progress. Attorneys are usually present. Caucuses in which the mediator might meet separately with one or the other party are frequent. In fact, at times the parties never meet face to face, and the mediator goes from room to room, practicing what is called “shuttle diplomacy”. The goal is to get the litigating parties to come to agreements using the mediator’s evaluation of the relative strengths or weaknesses of party’s lawsuit to encourage parties to come to settlement.
The final theoretical type of mediation is “Transformative” mediation. The definition of this type of mediation was formulated by Joseph Folger and Robert Bush in the early 1990s. Both Folger and Bush are academics, Folger now at Temple University; Bush at Hofstra University School of Law.
Folger and Bush theorize that mediation has the potential to effect deeper changes in people than just resolution of specific disputes. It has the capability to transform, not only the relationship between the parties, but even the character of the individuals involved.
According to Folger and Bush’s construct, the key to this transformative change in mediation is “empowerment” and “recognition”. Empowerment here is used in the sense of a person’s power to make his or her own decisions. A person is empowered through gaining clarity about goals, resources, options, and preferences. The person uses this information to make his/her own clear and deliberative decisions during the mediation process. “Recognition” is considering, acknowledging, and having empathy for the other person in the mediation.
The mediator’s focus is to look at the parties’ interactions, and identify opportunities to assist the parties in gaining “empowerment” and promoting “recognition”. The process is open-ended, unlike facilitative and evaluative mediation. The goal is not necessarily towards “settlement” – settlement is presented as one possible outcome.
Where does Marital Mediation fit in?
Is marital mediation (mediating disputes between married couples) facilitative, evaluative, or transformative?
First of all, like all mediation, marital mediation styles will depend on the personality, skills, preferences, and background of the mediator. Mediators come from all walks of life, and with varying experiences and trainings. Mediators are not generally locked into one of the three categories. Every mediator will do his/her job differently and most combine mediation strategies to seek to make the mediation effective. Mediation, in that sense, is more like an art than a science.
Most of what marital mediators do falls under the category of “facilitative” mediation. However, in marital mediation often the mediator is not as concerned with helping parties get to an agreement, as with promoting understanding. In contrast, in divorce mediation, the goal is to come to the many specific agreements needed to complete a comprehensive divorce settlement agreement. As a result, divorce mediation has a specific goal and may be faster-paced.
In a marital mediation, the parties are not getting along in certain aspects of their relationship. Often this discomfort and anger has spread over to their entire relationship making their interactions quite corrosive. Getting them to have one agreement on a troublesome issue may be helpful, but facilitating mutual understanding is generally more important. That is why in marital mediations, a written agreement often does not result from the process.
In a marital mediation, a couple need not solve all of their problems. There might be only one issue worked on, and when there is resolution of that issue, the parties are able to solve other issues by themselves, and the ongoing relationship improves. So in a sense, the process is “transformative” because the mediation has transformed the marriage.
Sometimes there might be elements of “evaluative” mediation in marital mediation sessions – particularly if the mediation clients are close to divorce and want to know what the terms of a divorce might be in their factual situation. In these types of marital mediations, the clients may wish to enter into a postnuptial agreement to clarify their positions and relieve the stress of uncertainty in connection with financial issues that are troubling them.
Unlike in “facilitative” mediation and “evaluative” mediation, caucuses in marital mediations are discouraged. Caucuses involve “secret” messages to the mediator that can become very awkward and destructive to the marital mediation process. In marital mediation the point is to make all lines of communication clear.
The Folger and Bush ownership of, and construct around the term “transformative” in “transformative mediation” is problematic. They have essentially co-opted the general term “transformative” to mean a mediation based on “empowerment” and “recognition”. This puts a conceptual straightjacket on other forms and blends of mediation that both clients and mediators feel are “transformative”, within the generally accepted meaning of that word.
Many marital mediators who primarily use “facilitative” mediation, find that helping married couples solve disputes through standard mediation techniques and clarifying longstanding misunderstandings is “transformative” for the clients. A couple that stops arguing about something (with the help of a mediator) has learned something important about their interactions – and perhaps themselves — that they can apply to other situations. This can be transformative to them.
And one could say all effective marital mediation is transformative, whatever method of mediation is used. Forcing “transformative” mediation to be based on Folger and Bush’s construct of “empowerment” and “recognition” is too limiting.
John Fiske, a Massachusetts mediator, talks about the essence of spousal conflict being caused by issues relating to “control” and “acknowledgment”. Although these terms seem similar to Folger and Bush’s “empowerment” and “recognition”, the first prong of Fiske’s construct is quite different.
Fiske, like Sharon Strand Ellison in Taking the War out of our Words: The Art of Powerful Non-Defensive Communication (1998, 2007), http://www.pndc.com/ believes that power struggles between spouses is the central theme of most marital conflicts. Fiske encourages couples in marital mediation to look at their behavior in terms of power and control, because when you scratch the surface, that is what they are generally arguing about. Fiske also posits that lack of respect or acknowledgement of the other spouse’s actions and views, aside from being usually not fact-based, is a destructive element in a marriage. Acknowledgement encompasses being heard, understood, and respected. A mediator working with the issues of “control” and “acknowledgement” in a marriage can help a couple greatly.
I find Fiske’s construct of “control” and “acknowledgement” more useful in my marital mediations than the Folger/Bush construct. To see how Fiske’s construct plays out in the context of typical spousal disputes relating to driving automobiles, see my PowerPoint entitled “Driving your Spouse Crazy — Literally”. http://www.maritalmediation.com/2013/11/driving-spouse-crazy-literally/
Unlike facilitative (and evaluative) mediation, the Folger/Bush model of transformative mediation allows and even encourages the parties to express emotions and bring up discussions of past events. Marital mediation is more like “facilitative” mediation in that respect, in that emotions and past events are generally (and intentionally) excluded from the mediation. This is also one of the differences between marital mediation and marital therapy or marital counseling. In the latter, emotions and past events are often explored and used to help a couple improve their relationship.
Marital mediation is fact-based, communication based, and focused on the present and future. But even though the mediation does not focus on past events, and personal and family histories, in a successful marital mediation, the result can be seen as “therapeutic” in the sense that if a marital conflict is lessened, the parties feel better about each other and their marriage.
Marital mediation is similar to “transformative” mediation in that it is open-ended. Parties may come to the mediator with a specific dispute, but more often they come with many disputes. Taking time to solve one of them, and not forcing a solution or agreement to a particular problem in one session is extremely helpful to marital mediation clients. Since coming to “an agreement” is not primary (but coming to understanding is), marital mediation is slower-paced than facilitative mediation, but in general, clients will use a similar number of mediation sessions in all.
Where does marital mediation fit into the construct of “facilitative”, “evaluative” and “transformative”? It has characteristics of all of these, as well as John Fiske’s construct of “control” and “acknowledgement”, depending on the situation, the mediator’s preference, experience and style, and the clients’ needs and visions for what the marital mediation should accomplish.
© 2015 Laurie Israel. All Rights Reserved.
by Laurie Israel, Esq.
As published in Huffington Post, August 12, 2014.
My mediation practice during the past several years has taken a turn towards mediating prenuptial agreements. Here’s how it happened:
At times being the “other” attorney reviewing the agreement sent by the lawyer of the more moneyed spouse-to-be, I noticed a trend: The first draft of these agreements generally sketched out a marriage with no guaranteed financial interplay.
The typical lawyer-proffered prenup says that no (or little) money or assets are to be shared with the other spouse unless the moneyed spouse wants to. Further, generally there is no guarantee or minimum of assets provided to the less-moneyed spouse if the parties are married at the death of the more moneyed spouse. And there are iron-clad provisions preventing a spouse from claiming rights to the deceased’s estate.
Once the first barrage in the prenup wars is sent by the more-moneyed spouse’s lawyer, it’s an uphill battle to change the initial terms of the agreement. Generally the spouse-to-be’s attorney has convinced him (or her) that it is a matter of “risk contol” in case of divorce and a restrictive prenup is necessary and proper to protect the client.
It doesn’t take a rocket scientist to see the harm such a prenup can do to a marriage. During the negotiations, feelings are harmed, generally irreparably. I have seen people walk down the aisle with a marriage — with all but the financial connection. The feeling of being abused and marginalized persists through the marriage. Having little or no vested martial rights weakens and harms the marital relationship.
Of course, these concerns apply much less (and sometimes do not apply) to later-in-life marriages where the parties are financially secure and there are children of previous marriages. For these people, a prenup is often helpful to create family peace and provide for one’s own children at death, often balancing this with the needs of the new spouse.
Mediation is an excellent way for people to resolve their differences and have clear
communications. A mediator can help level the playing field, and elicit all thoughts and concerns of both parties in a non-confrontational setting. Mediating these conversations helps the clients discuss difficult issues without emotions, anger and hot speech overcoming them.
The discussion can be rational and productive. Ideas as to how to fairly and accurately balance and accommodate the parties’ legitimate concerns can be proposed by the parties and the mediator. Some of the mediator-proposed ideas may be ones that the parties may not even have thought about or thought were possible.
So a number of years ago, I started suggesting to clients who approached me about prenuptial agreements to consider formulating them through mediation. It turns out it is a wonderful way to do a prenup. At the end, the parties almost invariably feel fairly treated, and the resulting prenup is not overreaching or over-restrictive.
How does mediating a prenuptial agreement relate to marital mediation? Marriage relies on generosity. (See “The Generous Marriage”, by Tara Parker-Pope.) In this article, the author discusses a recent study by the University of Virginia’s National Marriage Project (a marriage research think tank) that studied the role of generosity in marriage. Its conclusion: generosity is the glue that leads to increased “happiness quotients” for marriages. Significantly more of the couples in a “generous” marriage reported being “very happy” together.
Cutting your spouse out of your earnings and financial wherewithal (which many standard-issue prenups do) is ungenerous. The old adage “money is love” is really true. It is an expression of love and caring. As the National Marriage Project’s W. Bradford Wilcox (who led the “generosity” research) said, “Living that spirit of generosity in a marriage does foster a virtuous cycle that leads to both spouses on average being happier in the marriage.”
So in essence, premarital agreement mediation is a form of marital mediation in several senses: it encourages generosity, truthfulness and clear communications. It’s about money and security, which is a deep concern in marriages. It helps to train the couple in their ability to discuss and resolve difficult issues. This is identical to marital mediation where couples are struggling over difficult issues, often money issues, which are extremely common in marriages.
Facilitating a client-controlled prenuptial agreement with honesty and direct communication between the spouses-to-be, means that you are helping the couple embark on a stronger, clearer, more generous marriage. This bodes well for the health of the marriage.
So as I started, is mediating prenups a form of marital mediation? The resounding answer is “yes.”
© Laurie Israel 2014. All rights reserved.
Published in The Huffington Post, March 21, 2011.
As a divorce lawyer and divorce mediator, my divorce clients describe problems that led to the failure of their marriages. These problems seem to be universal. There might be anger and frustration about sharing household duties and creating income for the family that finally caused a breakdown. Some marital failures were a result of concrete problems relating to livelihoods and financial security. Other couples report problems associated with lack of time, diverging interests, in-laws, difficulty with children. Whatever the problems are, at the end of a marriage the spouses no longer want to live with each other.
by Laurie Israel.
I have served clients in mediation in many roles — as mediator, as reviewing attorney, as client’s attorney in the background, and as client’s advocating attorney at mediation sessions. I have seen a great range of use of caucusing by mediators (including myself), sometimes related to a mediator’s style or the mediator’s theoretical model of what mediation should be, sometimes relating to the particular facts of a case and needs of the clients.