Archive for June, 2017

All Mediation Is The Same… Or Is It?

Life has not gone the way you would like, and now you are faced with divorce. Maybe you wanted it, maybe not. In any case, it only takes one side to make a divorce happen.

There are many paths for couples going through a separation. These include working it out themselves, using mediation, working in a collaborative or cooperative setting, or go to litigation which is the highest level of conflict. Yet we find that in almost all situations some form of mediation may take place, even if it is a settlement conference in litigation.

Mediation is a process. It typically involves identifying the conflict issues to find real differences and common ground. The mediator will ask about what is important to each side regarding finances, parenting, and emotion-based outcomes. This leads to proposals and counter proposals. At this stage, the process focuses on communication. That requires both sides to be respectful of the other. The most direct way to achieve that is to remember one simple rule: if whatever is said at the mediation conference cannot be put into a box or be put into a math problem with it, the information may not belong on the table. The whole process results in the formalization of agreements.

But did you know there are different approaches to mediation? These include facilitative, evaluative, and transformative.

Facilitative mediation is very much like it sounds. The mediator assists the couple to come to mutually acceptable agreements. The mediator assists the couple in seeking and obtaining an analysis of options they are considering. The facilitative mediator does not make recommendations to couples. There is no advice or opinions given and no predictions about what might happen in court. The mediator controls the process while the couple is responsible for the outcomes. Mediators in this category want the couple to be the core of decision making, not their attorneys.

Evaluative mediation is more like a court-ordered settlement conference that a judge may hold. This type of mediation offers a view into the weakness of a person’s case or argument with predictions of what a judge might do with the same information. Evaluative mediation focuses more on the legal rights of each side. This is like shuttle diplomacy with the mediator moving from one side to the other. Attorney’s tend to like this format since they have more input into the process. The mediator may even meet with the attorneys alone to discuss the merits of the case, leaving the couple out of those discussions. Evaluative mediation can make the process more like a litigated settlement rather than a participatory process focused on the couple’s wishes.

Cost of Oak Tree Mediation Carlsbad San Marcos Divorce

Transformative mediation works to empower the couple with a recognition by both sides that there are interests and needs that are important and valid for each. The values and points of view are given importance in the process.

The potential for transformative mediation is that any or all parties and their relationships may be transformed during the mediation. Transformative mediators meet with parties together, since only they can give each other acknowledgment and respect. This method fully puts the couple in control of their path forward with the goal of morphing into something healthy on the other side.

Is there a best option? Not really. Each method has pros and cons.

Evaluative mediation sounds like it provides answers that are court-based and “fair” in the eyes of the law. Yet couples seeking mediation tend to want control of their own fate versus being told what is best based on somebody’s case or a law that was written and that does not fit their desires. If a couple wants someone to tell them an outcome, then this may be an option that could work for them. This process came out of litigation so one of the cons is that individuals may feel compelled to settle by the attorneys.

Facilitative and Transformative mediation tend to be more supportive of the couple by providing information and resources. These methods do inform couples of the law and help couples to look at options. They elevate the human elements of the family, a new view of life apart and the impact on children within the process. The con is that there is no pressure to settle and there is no fixed timeframe for people to reach an outcome. The couple is in total charge of the outcomes and, as such, the process may take more time. Yet the biggest pro element is that same issue – keeping the couple in control of their lives rather than surrendering to an outcome-based court model for reaching a settlement.

Each process is a tool that mediators may be trained with. When they are trained in the different methods, a mediator may be more flexible in their approach to your process. The result is if a mediation relies only on one approach, it is possible that legal information may play too great of a role while personal interests may be weighted too lightly. On the other hand, the reverse may take place. In all methods, one critical position of the mediator is to watch for weaknesses or an imbalance and to work to get both sides on an equal footing. This way the resolutions reached are better understood by both sides, and the agreements are profound, lasting, and respected by the couple. It is, in fact, their agreement.

Talk to your professionals that you are considering for any process whether it is mediation, collaborative or even litigation and find out their feelings about these different methods. Chances are that mediation will be used in your separation at some level and you should feel comfortable that the approach is something you agree with.


Armand and Robbin D’Alo