Hiring Experts in Mediation – It’s very Different than in Litigation

In both mediated cases and those litigated in court, experts may become involved; but their roles can be very different, depending on which process they are involved in.

A psychologist in a litigated case:

In a divorce case where there are children, a forensic psychologist will most likely be appointed by the judge, if the parents are involved in a custody dispute.

In large part, the job of the psychologist is to determine who is the better parent. And, who is the worse parent. The reason for this is that the issue in court is essentially, “Who will get custody of the children?” Someone will ‘win’, and someone will ‘lose’.

Parents and children will meet with the psychologist, separately. Many of the questions asked may be intrusive. Often, one or both parents is frightened of “losing the children”. Even loving and nurturing parents can be tempted to coach their children, telling them what to say to this mental health expert whose report may well have a significant impact on the outcome of the litigation. Unfortunately, a few parents will ask or tell the children to lie, and the consequences can be devastating and long lasting, for instance, when a child is instructed to allege abuse where no abuse has taken place.

A psychologist in a mediated case:

In mediation, the question is not “Which of you will get the children?”, but rather, “How will each of you (Mom and Dad) spend time with your children, so that you can be the best parents you can be to them, and so that your children can get the most from both of you?”* [Please note that I am not talking about a situation where there may be abuse; that is another discussion.]  Usually, parents are able to answer this question on their own, without looking to a mental health professional.

But, if a psychologist or other mental health professional is needed during mediation, the purpose might well be to have a child meet with that person to help the child, by engaging in play therapy, let’s say, where the child’s play or drawings might reveal anxieties that can then be addressed. The child can then be helped to feel more secure; the adjustments and transitions made easier and less scary.

A financial expert in litigation:

In a court case, you might hire someone to tell the court how much the marital home is worth. Your spouse might do the same. It is likely that your experts will come back with different determinations as to what the value of the home is: Probably your expert will state a number or range that favors you; and your spouse’s expert will give a figure or range that favors her or him.

Possibly, the court may ask that a third expert be hired to settle the disagreement between the original two.

A financial expert in Mediation:

In mediation, you and your spouse would discuss the need for an expert to put a value on the house; and then, if you were to jointly decide that it would be worthwhile to hire someone, you would determine how to choose a qualified professional acceptable to both of you. You would decide on how to handle the person’s fee, perhaps splitting it in some fashion; perhaps not. Either way, there would be only one expert to hire regarding this question, saving you money as a couple. You could instruct the expert to provide the most neutral and balanced appraisal possible.

Conclusion:

In mediation, you have the choice of calling upon an expert to provide solid information or to assist in solving a problem.  By contrast, in court, a judge may make such a decision for you; and there, the circumstances and the outcome may feel much more threatening.

*Paraphrasing Erickson and McKnight Erickson, Family Mediation Casebook:  Theory and Process.

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All blog posts are for information purposes, and should not be considered as legal advice.

But I’ve known one of the parties for years . . . How can I mediate with them? (Part 1)

In the first mediation training I attended, in 1997, I learned that even a brief interaction with a potential client – without the other party to the dispute being present – could result in bias; or, in the appearance of bias. In the numerous trainings I have taken since, this idea has never been challenged.

Question: If a twenty minute phone call  with someone the mediator has never talked to before can lead to bias, how is it that a mediator could know one of the parties for years and still be considered impartial?

Gary Friedman and Jack Himmelstein raise this question in their book Challenging Conflict: Mediation Through Understanding (Chapter 10).

I don’t automatically disqualify myself as mediator if I’ve had previous contact with any of the parties or have a current relationship with them as friends, colleagues, relatives or the like. But I am quite wary of mediating with people I know.   So alarm bells went off when my assistant informed me that neighbors whose dispute was notorious in our small beach community had asked if I were available.

The authors state that mediators will “inevitably” form ideas about the parties they work with: “He’s too aggressive.” “She’s self-righteous.” “He’s been wronged.”  They go on to say that:

The problem is hardly avoided by simply eliminating from one’s practice any parties the mediator has known previously.

The question for us as mediators isn’t how to avoid judgments. It is what to do as they arise, . . . , to keep them from blocking or limiting our effort to be fully present for each party.

Next time: How the authors answer this question.

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Avoiding bias in Mediation – Starting with that first call

I continue today writing about impartiality in mediation, this post being about a policy or process to help avoid bias right from the outset.

When a potential client calls me, (or approaches me in person) I try to 1) avoid hearing about the “substance of the case”; and, 2) limit the discussion to process questions:  what mediation is, how it works and the like.

Avoiding substance:

  • Often, a potential client will begin (or turn) the call to matters that are upsetting to the caller, or deal with a desired outcome.  (Example:  “She moved out four months ago, has hardly seen the kids, and now wants to take them to her parents in Florida.”;  Example:  “He makes all this money and is threatening not to give me any.”  “Example:  “I have to be the one to stay in the house.”)
  • Hearing a lot about the case from one of the potential clients may result in bias; if it doesn’t, the other party, understandably, may believe that the mediator is biased in favor of the party who called and so can’t be impartial. This perception, accurate or not, probably can’t be changed.
  • I will frequently tell a caller (or the parties at a consultation), that “You should begin the process having confidence that I can help you both, and that I am impartial. If you don’t feel that way with me – or just aren’t comfortable with me – that’s alright. If you want to, take time and discuss it and think it over.  If you’d like, I can help you find other mediators to consider.  And, I mean it.

Turning to (or better yet, only discussing) process matters:

When a potential client gets into ‘substance’, I gently interrupt, and explain the need to avoid bias – or the perception of bias.  We then can, and usually do talk about matters such as:

  • How much mediation costs
  • How long sessions are
  • Generally, how many sessions (a range) many clients need
  • What the parties will need to do at and between sessions
  • How long before the judge signs the papers
  • I let callers know that:
    • I am not a judge and won’t be making decisions for them
    • I work to help both (or all) of the parties, and won’t be representing one against the other
    • I don’t give legal advice, such as on how a judge might decide a particular issue

Note:  I will ask a few questions, such as “Do you have children?”  But most of my initial questions I send to the parties using a brief form that both fill out individually and return to me; and, I follow up with the spouses together, at the consultation.

Looking at myself for bias: (Part 2 of ‘But you can’t always be Impartial, can you?’)

I have been writing recently about impartiality in mediation:  1) about how a mediator needs to work with both (or all) of the parties without taking anyone’s side; 2) discussing the question of whether working with clients during mediation means treating them in exactly the same way, and 3) pointing out that some people can’t be impartial because they  aren’t able to ‘sit back’ and allow the parties to create and agree on their own solutions, but rather must give (even advocate for) their own opinions.

In my last post, I ended by raising the matter of what happens – or, more accurately, what a mediator needs to do – when s/he feels some type of bias for or against a (potential) client.  Now, I’ll address this question.

As a mediator, I have to be aware of my own feelings and responses from the very first phone call or interaction with potential clients.  Usually, I don’t have any concern about my being able to work with parties in an impartial manner.  But sometimes – and it may happen right away on the phone, or during a consultation – I do get a sense that my ability to be impartial in this particular case may be an issue.

What to do as a mediator:

Question Myself:

  • What is it that I’m feeling?  Where does this feeling come from?  Does this party remind me of someone (friend, relative, . . .)?  Am I ‘transferring’ feelings about the person I have known onto the party?
  • On the occasions where these questions about my impartiality come up, it is usually enough for me to recognize that I have the feeling – whatever it might be – and to identify where it is coming from.  The feeling fades, and while I keep in mind that it is there, somewhere, I am able to work with the parties without it interfering in any way.
  • But, there are those very unusual times when I cannot be impartial (or when I still question whether I can be).  In such a situation, I have to acknowledge to myself that I am, or at least may be, biased.  I then have to decline the case; which I am happy to do, if I am not able to properly assist the parties.

To be continued . . . .

 

 

But you can’t always be Impartial, can you? (Part 1)

My two previous posts have been on Impartiality in Mediation: 1) about how a mediator needs to work with both (or all) of the parties without taking anyone’s side; and, 2) discussing the question of whether working with clients during mediation means treating them in exactly the same way.

Today’s blog is on the perhaps touchy matter of what do, if as a mediator, you do like, or somehow feel aligned with one party more than the other.  Or that a (potential) client ‘pushes your buttons’. Mediators, of course, are people; hopefully well trained and experienced, but still human.  We come to the table, so to speak, with our own upbringings, experiences and opinions.

Not everyone can or should be a mediator, and not only because of how someone may feel about the parties.

  • When people ask me about taking a mediation training – mostly people who have never taken such a training before – the discussion often involves the questions, “What would be the next step after the initial training?  Would I definitely be able to do that (participate in an apprenticeship* program, for instance)?  How can I know if I’d make a good mediator?”
  • I’m not able to offer guarantees when it comes to these matters; but I may share an example of people who do have a problem becoming mediators.  There are lawyers (again, I am an attorney, and this is not a knock on lawyers), especially some litigators, who cannot keep from taking a side when working with others.  Lawyers (and others) with this mindset, may not be able to help themselves from advocating one party’s position during mediation sessions.  The person may even try to provide the solutions and terms of an agreement, ones that the parties themselves might feel are unfair.

Obviously, such behavior isn’t impartial.  After observing newer (and occasionally more experienced) mediators, I have raised the question several times:  “Did you feel closer to one party than the other?”  We then explore the issue of bias.

But, my pointing out here that certain people have a more ‘impartial temperament’ than others, if I can call it that, does not answer the question about what happens if and when a mediator does like or is ‘rubbed the wrong way’ by a client.  Because, not being perfect, a mediator may still have such feelings, even without showing them.

To be continued . . . .

*Note:  An apprenticeship involves a newer mediator handling actual cases under the supervision of an experienced mediator.

If you do that, . . . , is that being Impartial?

In my last post, I wrote about being impartial as a mediator, assisting both (or all) of the parties, and not taking one’s side against another’s.  But for some readers, the following questions may still remain:

Does working with clients during mediation mean treating them in exactly the same way?  In a divorce case, does everything have to be ‘equal’?

Yes.  And, No.

‘Yes’ examples:

  • I treat all of the parties respectfully.
  • I listen to all of the parties carefully, make sure that I understand them, and invite them to correct me if/when I misunderstand something.
  • In divorce cases, I encourage both spouses to have their agreements reviewed by a matrimonial attorney before signing them (more on this in another post).

‘No’ examples:

  • In a session, “Wife” talks more than “Husband”.  Does my listening to Wife for more of the time (in terms of minutes) than I listen to Husband make me biased in Wife’s favor?
    • No, not if I am listening to both carefully.  Not if I take breaks in the conversation to check in with the less talkative spouse, providing opportunities for him or her to speak, respond, and so forth.  Not if the ‘smaller talker’ says to me, “I’m good.  I’ve said what I want to.  You can go on.”
  • “Wife” knows more about the finances of the marriage than “Husband”. Am I acting in a biased manner by having them gather and share information about their expenses, assets and debts?  After all, my efforts are probably helping Husband learn more than Wife, because Wife already knows a lot about these things.
    • Again, the answer is ‘no’.  As a mediator, I work to ensure that both (all) participants have the information they need to make informed decisions.  I do this regardless of who the parties are, and who knows more or less coming into the first session.

Yeah, it’s Voluntary; What else is Mediation? Impartial

In my previous post, I began to discuss what the process of mediation is, and explained that it is voluntary.  Mediation is also:

  • Impartial (some use the word neutral)
    • As a mediator, I work with both (or all) of the parties.  I work to understand each person, and to help them consider and speak about what s/he wants and needs for the future.  In the context of divorce, this often means talking about a place to live and how to pay for this and other expenses; and, if there are children, about spending time with them, and making decisions in regard to raising and caring for them.
    • I do not represent either (or any) of the parties; representing one party against another is something a lawyer often does.  Again, as a mediator, I work with all of the parties, helping them to gather and share information, to develop and consider options for going forward, and ultimately in reaching their agreements.
    • My role is to help the parties to communicate constructively, to guide them in considering and addressing all of the issues that they need to, to ensure as I am able to that their proposed agreements are workable (reality testing), etc. Without taking anyone’s side.

To be continued . . . .