Family Mediation Practice

John Allen Lemmon

• Publisher: Free Press
• Year: 2008
• Print ISBN: 9780684863924
• eBook ISBN: 9781439119563
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

A helpful guide for all those now mediating family disputes, as well as for those who hope to become family mediators.

CHAPTER 1 Family Mediation’s Scope

FAMILY MEDIATION PRACTICE describes mediation as a method and demonstrates the techniques used to mediate various types of disputes. Families with problems who seek professional help may decide that mediation offers them the best assistance when this approach is explained to them. For the reader interested in becoming a mediator or considering hiring one to help resolve a dispute, this chapter provides a basic understanding of how mediation works.

Chapter Two, “The Mediation Process: Typical Stages and Techniques,” demonstrates what actually happens in mediation sessions. Examples illustrate how the mediator sets the tone for open communication and encourages the disputants to focus on reaching an agreement rather than stressing their grievances. The reader learns how the mediator typically guides the disputants through a series of stages toward settling their conflict.

Chapter Three, “Mastering the Mediation Method: Art and Technology,” discusses ways for the mediator to develop a personal mediating style by acquiring language skills that can be applied in a range of mediating contexts. Specific techniques, such as humor, story-telling, and role-playing are explained here. Using a personal computer and video taping can enhance the mediator’s practice through procedures that are described in this chapter.

The creative, individualized nature of mediation makes it particularly effective in negotiating divorce settlements. The “Divorce Mediation” chapter stresses the importance of considering all family members’ emotional and financial needs during mediation. Particularly when children are involved, the mediator is sensitive to the parties’ complex, often unspoken fears and anger, and considers the interrelationships between the legal, psychological, and financial aspects of any settlement. “Mediation Throughout the Family Life Cycle” discusses the disputes which often arise as individuals in families grow and age. Conflicts between elderly parents and grown children, and between teenagers and parents require flexible, creative settlements. In “Mediation Between Neighbors or Unmarried Cohabitants,” principles of family mediation are applied to disputants who are unrelated. In any ongoing relationship, conflicts can develop similar to those common in families, and mediation can help to settle them. Business and professional associates often have a close family-like relationship, and Chapter Seven discusses how the mediator can be effective in settling business-related disputes within the context of the working and personal relationships between the disputants.

Mediation is becoming a new profession, developed to meet the needs of people in a changing society, and its practice raises both legal and ethical questions. Chapter Eight discusses these issues, and reproduces the 1984 standards of family mediation approved by the American Bar Association and the 1984 interdisciplinary standards for family mediation developed by representatives of thirty law and mental health professional organizations. The final chapter, “Becoming a Family Mediator,” provides advice and information on education, training, setting up an office, and establishing a successful practice. The appendixes contain the Domestic Relations Tax Reform Act of 1984, landmark cases on mediation, and information on the Academy of Family Mediators, a national organization offering services to five categories of members from students to experienced practitioners.

You Have a Dispute

You might be reading this book because you are trying to decide whether to ask a family mediator for help with a problem. Maybe you are facing a divorce or the breakup of another important relationship. You may feel as though you have lost control of your teenage children, while trying to come up with even the minimum payment for the credit cards each month and having to think about the fact that your brother and sister are threatening to take you and each other to court to settle whether or not to sell your late parents’ house.

Psychotherapist

You have been a psychotherapist for a number of years. You planned to do marriage counseling, but your experience has been that many of the people you see are in transition to a divorce. If they do go through that procedure, you have felt powerless to help them while they tell about their pain in defining their future relationship with their children. Their lawyer says this will happen, their spouse says no, the court will do that, and there simply isn’t enough money for two households. Who will get the house, or will it be sold? You have heard that mediation offers you the skills to assist them in making their own decisions by talking to each other with your guidance. How can you expand your work to include mediation and avoid the unauthorized practice of law? What do you need to know about family law and financial planning? How is mediation different from psychotherapy?

Family Lawyer

You might be an attorney who has established a successful practice in matrimonial law, which you know paradoxically means helping people get divorced, not married. However, you have always tried to reconcile being a vigorous advocate for your client and obtaining the result they ask for (before they change their mind yet again) with reaching workable agreements that consider any children involved. You do not want to become a family therapist, and are more comfortable valuing a high-tech company that may go public in the next year than talking with parents about the details of child custody. Still, the bar association has sponsored national and state conferences on family mediation, and it sounds appropriate for a number of your cases. How is it done? What guidelines will permit you to be both a mediator and a litigator in terms of your state bar’s version of the Code of Professional Responsibility?

Graduate Student

You may be a graduate student in one of the mental health professions. Family mediation is an elective that appears to combine the family therapy techniques you have been practicing with knowledge of law and financial planning to help family members to reach written agreements with each other to resolve conflicts. Many of the recent articles on divorce and remarriage as well as conflicts throughout the family life cycle have discussed mediation and you are curious.

Law Student

Perhaps you are a law student. Your family law professor also offers a family mediation seminar that features the application of tactics of alternative dispute settlement to resolving divorce and other domestic conflicts out of court. You may be learning about mediation as one of the possible roles for an attorney in a course on lawyers as negotiators or a general introduction to alternative dispute resolution.

A DAY IN THE LIFE OF A FAMILY MEDIATOR

Since the Treadwells’ appointment is at a quarter to eight this morning and traffic from your children’s school is slow, you decide to skip the cappuccino. Both Ralph and Miranda Treadwell work downtown, so they prefer early morning appointments. Their divorce is moving from the “We’re the best of friends” stage to snarling at each other. You have gone from being their enlightened guide as mediator to proof that all men are against women in Miranda’s eyes and one of the cads likely to make a play for his soon-to-be ex-wife in Ralph’s view. They are embarrassed and angry that they can’t seem to maintain civilized manners as specific financial planning forces them to face the reality of separation. Today you are going to discuss how they might share custody of their daughter, Vanessa, a subject they have been avoiding. They probably will have done the homework you talked about last week, but even so, it will be a painful two hours. Still, they both were relieved when you told them that you had shared custody of your children for the past five years. “Maybe you do know something about this divorce business after all.”

You are consulting this afternoon at one of the largest computer firms in the Bay Area. They are considering adding an “Agreement to Mediate” clause to their contracts with others in the industry. They have been impressed with the material you gave them about the movement toward getting quick and relatively low-cost resolution of disputes without risking company secrets in the legal discovery process. They became your clients when family mediation was added to their Employee Assistance Program, which already offered family counseling. A survey showed that many of the problems involved divorce, conflicts with adolescents or an elderly parent in the home, or financial troubles, all of which may be appropriate for mediation. When you helped to resolve a number of employee grievances that were the hidden agenda in training sessions and supervisor referrals, the need for mediation with other companies was expressed by the vice president for finance.

Your Family Mediation class at the university is considering the scope of divorce mediation tonight. In the past, the law students have tended to focus on resolving the money issues, while the social work students emphasized the psychological effect of divorce on children. Two of the family therapists who are experienced practitioners enrolled in your seminar through continuing education have been supporting your notion that, in real life, property settlement, spousal support, child support, and child custody are legally as well as psychologically linked. The doubting students should have seen the Treadwells relate living in the family residence to visitation and support schedules for Vanessa this morning. Maybe they will, since the Treadwells have given their consent for you to share videotapes of the sessions with the class.

Family Mediation Defined

Mediation is the practice of resolving disputes with the aid of an impartial third person. Conflicts happen no matter how hard we try to avoid them. In the past, people who could no longer tolerate unpleasant family situations might ask older family members, clergy, or community leaders to help. Today, the family may live far away, the disputants may not have religious affiliations, and they may not feel enough sense of community to ask their neighbors for help.

With the weakening of traditional sources for dispute resolution, people turned increasingly to the courts. Today we have reached the point where settling financial aspects of a divorce may take years of litigation. One court had to work out shared custody of the couple’s treasured dog. A judge was asked by a daughter to make her father pay for college although he objected to her living with her boyfriend.

Crowded courts where judges apply general rules of law are not good places to work out the particular needs of people troubled by family or other interpersonal conflicts. The legal process costs too much, takes too long, and does not allow the people with the problem to talk to each other and to work out a solution they can live with.

The Advantage of Mediation over Arbitration and Adjudication

If you and a person you are in conflict with could agree on a neutral third party to help you talk about the problem without fear of consequences if neither of you are satisfied with any proposed agreement, you would be in mediation. This process is different from negotiating for yourself with no one else present, or having a representative, usually a lawyer, but maybe your mother, talk for you. Mediation also differs from arbitration, because to arbitrate means to decide if the disputants cannot agree for themselves. You may behave differently if you know that the third person you asked to referee your dispute will make a binding decision if an agreement is not reached. This sounds more like adjudication, a decision by a judge, except you may get to choose the arbitrator.

California has mandatory mediation of child custody disputes. However, some judges there instruct court-based mediators to make a recommendation as to which parent should live with the children if mediation is not successful. As a result, lawyers have advised clients to be cautious during the mandatory sessions and not to reveal unflattering information. In true mediation, a parent is free to say that she was intent on building her career for the next few years and would be willing to share custody without jeopardizing her position in court if no such agreement can be worked out. It would be up to the court-appointed child custody investigator, who is not a mediator, to discover this fact and report it to the judge with a recommendation.

Who Can Benefit from Family Mediation?

What is a family today? The Family Service Association of America defines a family as people who provide each other with emotional and economic support, protect one another, and intend to continue to do so permanently. This is a broader view than traditional notions of family ties being created only by marriage or birth. We will stretch this idea even further to include neighbors and colleagues at work to define who we may mediate.

Divorce Mediation

Divorce breaks up families. Mediation has proven particularly helpful with families through this painful period. The emotional connection between the spouses and the possibility that they may need to continue contact after divorce because they have children makes mediation a good choice. If you have heard of mediation with families it probably was divorce mediation. While I am going to devote part of this book to divorce mediation, I am also going to focus on mediating other personal relationships. First, though, a preview of two controversies facing divorce mediators.

Children and Money: Who Should Decide?

Divorce mediation is offered by courts in an increasing number of states. However, only child custody and visitation disputes can be mediated in most of these programs. Yet we know that all four issues to be decided when parents divorce—property settlement, spousal support, child support, and child custody and visitation—are emotionally and legally linked. Remember the Treadwells at the beginning of this chapter?

Whether or not mediation should be comprehensive or limited to child custody is related to the second controversy about divorce mediation. Who should mediate? Social workers, psychologists, and others with graduate degrees trained in family therapy may only talk about children because they are working in a court-based program. Mediators in private practice with these credentials may feel they do not know enough about law or financial planning to resolve money matters. Mental health mediators may fear being charged with the unauthorized practice of law if they help to settle financial aspects of the divorce. Attorneys who also mediate are concerned about possible conflict with the state bar’s provisions for the practice of law if they are mediating impartially rather than representing only one of the divorcing parents in an adversarial manner.

Shared Custody

The greatest benefit of divorce mediation may be that parents who are going through a terrible time in their lives can be helped to preserve their relationships with their children. Sharing custody of children after divorcing is not easy. It is worth doing. Research suggests it may be the best decision you can make for children. States tend to pass a joint custody law first and legislation offering mediation later. If mediation is provided first, parents have a guide to help them at the time they need expert assistance most.

Family mediation can help parents reach an agreement to share caring for their children that has a good chance of lasting. There are problems with sharing custody that need discussing at the time of divorce. Other problems come with remarriage of one or both parents or the possibility of one of them moving beyond commuting distance. Sometimes sharing the rights and responsibilities of parenting after divorce just will not work for a particular couple.

Mediation After Divorce

Child custody and visitation may change any time after the divorce until the children are eighteen. This change may evolve gradually and informally to meet the needs of all members of the divorced family. However, if the parents cannot talk to each other well enough to work out these adjustments, the unmet needs may result in a costly court battle, years after the divorce, seeking to formally amend the marital settlement agreement by shifting legal custody to the other parent or providing for different visitation. Then the loser begins to gather information for the next round in court. How can you stop this cycle?

Successful mediation agreements assume that raising children is a process. The future needs of both the parents and children will indicate changes must be made in the arrangements made at the time of divorce. Parents are probably not thinking about private schools or bar mitzvahs when they divorce with a one-year-old, even if the mediator tries to introduce planning for these future decisions. One or both parents may swear that they will never marry again, so the mediator’s stating that 75% of women and 80% of men remarry within six years after divorce, half of them within three years, may provoke incredulous comments.

Courts retain the power to change the amount of child support for children after the divorce. Parents cannot make any agreement that forfeits this right of the court. Child support all too often is set too low at the time of divorce. Worse, many parents, usually fathers, stop paying child support within a year or two after the divorce. Even when payments are made, they seldom increase to account for inflation or the greater expenses for older children. Remarriage or loss of a job affects the amount of money available to the children.

A good mediator teaches parents techniques for settling future custody and financial issues themselves. This good mediator also assumes that the parents may not be able to work out all future disputes. The parents may again need to consu...

Table of contents

• Cover
• Title Page
• Dedication
• Acknowledgments
• Chapter 1: Family Mediation’s Scope
• Chapter 2: The Mediation Process: Typical Stages and Techniques
• Chapter 3: Mastering the Mediation Method: Art and Technology
• Chapter 4: Divorce Mediation
• Chapter 5: Mediation Throughout the Family Life Cycle
• Chapter 6: Mediation Between Neighbors or Unmarried Cohabitants
• Chapter 7: Business and Professional Applications of Family Mediation
• Chapter 8: Ethical Codes and Standards of Family Mediation
• Chapter 9: Becoming a Family Mediator
• Appendix A: Domestic Relations Tax Reform Act of 1984
• Appendix B: McLaughlin v. Superior Court
• Appendix C: National Labor Relations Board (NLRB) v. Joseph Macaluso, Inc.
• Appendix D: Academy of Family Mediators
• References
• Index
• Copyright