Family Relations Mediation
When I remember the frustration and anger that I went through in the divorce that I experienced in 1979 I am reminded of the above quote by Mahatma Ghandi. My hope is that you access the mediation as described in the following pages so that you too will be able to transmute your dysfunctional characteristics into constructive and fair resolutions during your transitions through the separating and divorcing process. Mediation is a structured process in which a neutral third party assists the disputants in reaching a negotiated settlement of their differences. The mediator encourages open discussion of the issues and uses a variety of skills and techniques to provide a forum within which the disputants can construct their own agreement. Mediation is a voluntary process that results in a signed agreement which defines the future behaviour of the parties. The mediator is not empowered to render a decision. Most parties in conflict cannot afford protracted litigation. They often lose any apparent gains that they achieve in courts. Mediation provides disputants with a less costly and time – limited intervention. The main advantage to mediation is that it empowers the parties to solve their own problems in a fair and equitable manner. The best of all forms of family mediation is comprehensive mediation (which addresses the psychological, the family – related and the financial matters simultaneously) done by one professional who is cross – trained in the psychological, family and the legal aspects of separation and divorce. Lawyers rarely have any training at all in the complex psychological and family issues involved at this time of crisis and transition for the parties. Also lawyers, who act as a mediator, require each party to retain a separate lawyer and thus the family is involved with three lawyers! A highly skilled and cross – trained non – lawyer mediator will only occasionally require each party to retain their own lawyer. Of course, individuals are always free to draft and sign contracts with or without mediators and/or lawyers. However, if a mistake is made, the contract is still binding because ignorance of the law is never an acceptable defence. Thus, it is a good idea to have a neutral third party as described above. Most separating couples agree that issues relating to their children are the most important ones to be resolved. However, when given the choice about what they want to negotiate first, they usually choose the financial issues. They are aware that the parenting plan is usually dependent on the financial plan more often than the other way around. When the couple is involved with a cross – trained, non – lawyer mediator they can minimize the impasses that can arise because of an artificial separation of the issues. Also surprise breakthroughs and creative solutions are much more likely when all the issues are on the table at once.
“I have learnt through bitter experience that one supreme lesson, to conserve my anger, and as heat conserved is transmuted into energy, even so our anger can be transmuted into a power which can move the world.”
Negotiations about assets and money bring out the power and control functions in a relationship, particularly when a couple is separating. The last thing that they need at that time is a professional whose world view is adversarial. The adversarial legal system is fueled by power, control and money. That is fine for a criminal defence or for a hostile corporate acquisition but it is extremely inappropriate for families. Separating families need to be steered away from the offices of lawyers and away from the courts and into the offices of non – adversarial mediators and family financial planners. The best model for a separating couple who have many assets and/or high incomes and thus significant tax implications is comprehensive mediation which involves a non – adversarial mediator and a family financial planner working in tandem. In family financial mediation, power balancing is crucial in the negotiating process. Often one of the parties is intimidated by the dynamics of working out a deal because they have usually accepted easy solutions in the past in order to avoid conflict. During the mediation sessions they become what is called “newly assertive” and this perturbs their departing mate. Often extremely aggressive behaviour can come out at these times. A well timed and relevant intervention by the mediator at this moment which focuses on the children and the future and not on the parties’ opposing positions or their past battles often leads to major breakthrough on an intractable issue.
Financial mediation is not a “win – lose” intervention. It is a “win – win” intervention in which each party shares equally in any losses.
Some of the most effective negotiating techniques work very well in the context of family financial mediation. For example:
Confronting symbolic issuesSometimes a couple will argue very stubbornly over a small household item or a small amount of money. It becomes obvious to the mediator that there is a much deeper and more significant issue going on below the surface. The intervention by the mediator at this time can create a “voir dire” or a view into why the relationship broke down in the first place.
A marathon sessionA negotiation may occasionally last for three or four hours because it is necessary to build up a tension and a concentration in order to resolve the issues.
The use of humourContinually reassuring the parties that life will go on and that maybe someday they will actually be able to be friends again, particularly if they maintain respect for each other during the negotiations.