Tuesday, September 8, 2015


The Justice system has a history premised on conflict. The parties battle each other through trial and a single victor emerges as winner.  A person charged with a crime is convicted or acquitted. A lease is found valid or is voided. A child is taken, on not taken, into care. 

The trouble with this win/lose paradigm is that it ignores the broader societal impact of a battle between parties.  This is especially true in family law matters. If a mother and father see each other as enemies instead of coworkers in raising children they are likely to be bitter and resentful instead of the loving parents they ought to be. 

The Justice system has come to recognize this wisdom of trying to avoid trials, at least in family law, and it is now normal to try to resolve family disputes by way of something called mediation. 

In mediation the parties get together with an impartial third party - usually called a mediator or, sometimes, a facilitator - and try to work out their differences in a cooperative fashion. No one "wins" a mediation - at the end of a mediation either there is an agreement as to how things will go from now on or there is no agreement and the old system of trial and conflict will decide matters. 

A mediation is held in private and no one from outside is allowed to watch or take part. Only the parties, their lawyers (if any) and the mediator are present.  What is said at a mediation is kept confidential and can never be used later if an agreement is not reached. The idea is that everyone can speak freely without worrying about other people hearing or saying something that could cause problems for them later. 

The mediator is often legally trained - in fact some of the best mediators are judges or former judges - but there is no requirement for legal training. Indeed the role of mediator is not to make decisions but rather to work with the parties to a solution that actually works for them. Mediators can be social workers, pastors or priests although the majority of mediators are lawyers or judges. 

Every mediation is different and every mediator has a different approach - but most medications start with the parties exchanging a written summary of what they see the issue to be. This exchange is usually made a few days before the mediation is held. 

At the start of most mediations everyone comes together in a room and the mediator explains that everything is confidential. Usually the mediator also sets out ground rules that everyone must behave respectfully and listen to what everyone else has to say. The mediator then says the way the mediator intends to proceed. A common approach is to separate the parties in different rooms and for the mediator to go back and forth bringing ideas and proposals. This "shuttle diplomacy" approach can seem endless but it is often effective. 

Regardless of the approach taken it is very important to take a mediation seriously. It is usually the best hope of avoiding a trial. And trials are expensive, emotionally devastating and very unpredictable. As a lawyer I tell my clients I predict cases about 80% at best - which means one time in five I predict wrong!  And I have been a lawyer a long long time. 

In a mediation you can craft your own solution and it is prudent to take that opportunity if it is at all possible. 

No comments: