What is Divorce Mediation through a Dispute Resolution Center?

Is DRC mediation right for your situation? In this guide, we’ll explain what you need to know about divorce mediation, including the rules of mediation & how to prepare for it

The Complete Guide to Divorce Mediation through a Dispute Resolution Center:

• What is divorce mediation?

• What divorce mediation is not

• Divorce mediation in Washington State

• The rules of divorce mediation

• The stages of a divorce mediation session

• How to prepare for a divorce mediation session

• Things that do not usually work in divorce mediation

• Things that usually work in divorce mediation

• Possible outcomes of divorce mediation

• Who is divorce mediation suitable for?

What is divorce mediation?

Divorce mediation is a tool to attempt the resolution of a dispute between two or more parties. It is facilitated by trained mediators and it provides a safe, neutral space for a difficult discussion. Unlike other dispute resolution tools such arbitration or trial, mediation is centered on the parties: they determine its outcome.

In arbitration and trial, an impartial third party (the arbitrator or the judge) hears the parties, forms a “judgement” and delivers a decision to the parties. The process is based on the legal rights of the parties, and the main objective is to resolve the dispute within the parameters of the law. The arbitrator or judge is not concerned with the satisfaction of the parties with his or her decision.

In mediation, on the other hand, the parties are fully empowered to make their own proposals and decisions, and agree to them (or not). The mediators facilitate the process and ensure its validity (for example that an agreement is mutually agreed to by the parties), but they do not form judgments or deliver decisions.

What divorce mediation is not

Mediation is not a suitable tool to try to fix unresolved long-standing deep personal issues or relational issues (for example, anger management, aggressive or manipulative behavior, etc.). In other words, it is not counseling or couples counseling.

Mediation gives the parties an opportunity to work on practical unresolved problems, such as a parenting plan, division of property, debt, how the parties communicate with each other, or even asking for or offering an apology. As an essential part of the process, the mediators (and the parties) will acknowledge the parties’ values (e.g. “Trust and respect are important to you”) and their feelings and emotions (e.g. “It sounds like you’ve been through a lot”), and they may even help the parties move past a “place of hurt”. However, while there is probably a range of approaches among mediators, the mediators will not offer “therapy”.

Unresolved deep personal and relational issues will usually surface in mediation, and the mediators will help the parties deal with them only with the goal of the parties being able work on the practical surface problems. In other words, if a party has an anger management problem, the mediators will help him or her deal with that so that it does not interfere with the mediation – and that may or may not work – but they will not offer anger management therapy or training.

Mediation at the Dispute Resolution Center is also not the appropriate place to seek legal advice. Although a number of mediators may have legal background, skilled mediators will not offer legal advice in mediation. Furthermore, giving advice would steer mediators away from their role of facilitators and put them in a more “directive” role; and it would alter the nature of mediation. Although it may be a part of a legal process (e.g. divorce proceedings), mediation is not designed for the enforcement of legal rights.

Mediation does not replace or exclude the assistance of lawyers. Many mediation clients seek legal counseling before, after, or in between DRC mediation sessions.  Other forms of mediation make full use of legal counsel; or, in other words, many attorneys make full use of the mediation process in their efforts to resolve a case.

Divorce mediation in Washington State

Mediation through Dispute Resolution Centers (DRCs) in Washington State is organized through Resolution Washington, the member association for community-based DRCs. Each center offers mediation services to the residents of a specific county or small group of counties. Some aspects of mediation may vary among DRCs, however there are a common framework and a shared approach.

The rules of divorce mediation

 

Voluntariness: Mediation is a voluntary process. Each party must be willing to participate. This goes beyond the mere “showing up” for the session, even when it is court ordered. For a session to be productive, each party should be willing to participate in good faith (see below).

Confidentiality: each mediation session is confidential. The information shared during the session does not get reported outside.

Good faith: this includes three main behaviors:

1) Listening – To what the other party is actually saying, not to what you think they are saying.

2) Keeping an open mind – Moving away from fixed positions, trying to see things from the other person’s perspective, and coming up with alternatives;

3) Being open– Sharing all relevant information that can help with the resolution.

Common courtesy is very important to the success of a mediation.  The parties should be on their best behavior, including no interrupting, no foul language, no insults, no verbal attacks, and no button pushing.

Forward movement is essential.  The discussion should focus on what happens from now on, as opposed to what happened in the past.

The stages of a DRC divorce mediation session

 

The mediation process may vary among DRCs, but usually, it includes the following stages:

• Mediator opening statement: the mediators introduce themselves and the process. They also lay out the rules of the session and ask the parties to agree to those rules.
• Client opening statement: each party offers their perspective on the dispute; they say why they are there and what they expect to get out of the session. It is an opportunity for each party to get some uninterrupted “air time”, and feel that his or her view and experience of the facts is being heard.
• Mediator feedback: the mediators summarize to each party what they have heard. The parties have an opportunity to check that they are being heard and what they said has been captured.
• Agenda building: the parties make a list of the specific topics they want to discuss. The mediators usually write the topics on a board. Only the topics that both parties agree to discuss will get listed as agenda items. At this stage, the parties have an opportunity to start interacting with each other, collect/process their thoughts, and get a sense of achievement when they look at the agenda.
• Negotiations: the parties take the agenda items one by one (in no specific order) and discuss them. This is often the crux of the matter, as parties try to compromise, give and take, and reach an agreement on the agenda items.
• Settlement agreement: the items and aspects where the parties reach an agreement are put in writing (in a settlement agreement form, or in a parenting plan form). The content of the agreement is entirely generated by the parties. The mediators usually act as scribes and may assist the parties with the language, if necessary. The written agreement is intended to be legally binding, for example if presented in court.
• Caucus: this is an optional stage which may or may not happen. Each party, in turn, meets with the mediators, while the other party temporarily leaves the mediation room. Caucus is an opportunity for the party to share information that he or she does not want to share in the open session. This information will not get shared beyond caucus, unless the party so chooses. Anybody in the session (mediators and parties) can “call a caucus”, if and when they see the need for it.

How to prepare for DRC divorce mediation

First, you’ll want to find information about how mediation works in the specific DRC of your area: look up their website, and call their office. For example, at the DRC of Thurston County, the process is explained on the phone, when the parties first call in to set up a session. It is a great opportunity to ask clarifying questions and start assessing if mediation is right for you, and how it is offered by a specific DRC.

Once you have set up a session, really spend some time thinking about how to make the most of it. Here are some suggestions:

• Prepare your opening statement: this does not mean that you should write and memorize a speech. It means collect your thoughts around what you want to say. Prioritize your goals. You will have under ten minutes for your opening statement. Make sure it clear and to the point: it includes the answers to the questions Why are you here and What are your objectives in this session?
• Prepare a list of items that you would like to discuss. If you have an overarching topic that you would like to discuss, break it down into parts, and prioritize the parts. For example, if you would like to discuss a parenting plan, you may want to list the sections you want to tackle first (Residential schedule? Decision making? Etc.).
• Do your research. On any topic that you would like to discuss, gather the information you need in order to be able to make a decision. For example, if want to discuss a holiday schedule for a parenting plan, and your family celebrates holidays that are different from the ones included in the parenting plan, you should have a list of the holidays that your family celebrates.
• Prepare to really negotiate. For each item that you would like to discuss, prepare a range of proposals/solutions, from the solution that is ideal for you, to a solution that is not ideal, but that you could live with. In doing this, consider the pros and cons of each solution, for you and for the other party. That will help you get a sense of how likely each solution is to get an agreement. This is excellent flexibility training! Be prepared to comprise and know what you are willing to give up.
• Gather any relevant documents. For example, if you want to modify a temporary parenting plan, bring that parenting plan to the session, as it will serve a basis for the discussion.

 

Things that usually do not work in divorce mediation

“I don’t think ‘crawl across the room and kiss my butt’ is likely to fly as a settlement offer”

Here’s what you should avoid doing in mediation:

• Just “showing up” to meet a court order’s requirement. If you don’t put in the necessary work, the session won’t work.
• Endlessly rehashing the past: the past cannot be changed. Repeating what happened over and over will not get you what you want. However, “getting closure” may help you move forward. And if what you need to get closure is asking for or offering an apology, you should think about a way to do that.
• Making assumptions without checking them: you may have a history with the other party, and that history may bring you to “anticipate” what the other party will say or do. Anticipating may be useful when you try to put yourself in the shoes of the other party. Other than that, let go of old assumptions, and try to look at the other party with new eyes. And if in doubt, ask a direct question.
• Keeping fixed positions: you may have reasons for your positions and those things that you are not willing to compromise. However, walking into a mediation session with an “It’s this or nothing” attitude, is not likely to get you what you want. Fixed positions usually prevent movement, slow down or stop the discussion, and ultimately may jeopardize the entire session as some mediators may end the session for a lack of cooperation.
• Responding “no” to a proposal, without offering a counter proposal. This brings the negotiation to a stop, or at the very best burdens the other party with having to present a new proposal, which may impact their willingness to cooperate.
• Working off of “old scripts”: if communication between you and the other party has not been working well so far (both in content and in form), using the same models is not going work in mediation either. Let go of old habits and modes of communication that have not worked.
• Making accusatory statements instead of requests, for example: “You never let me talk to the children for more than two minutes on the phone.”
• Trying to get the mediators “on your side”: expert mediators are impartial and neutral; their role is to help both/all parties and facilitate a resolution to the dispute.

Things that usually work in divorce mediation

 

Here are some tactics that usually work in mediation:

• Showing up and giving it a serious try, doing the necessary work, making a genuine effort.
• Focusing on the future: the discussion should center on answering questions such as What do we do now? How can we move on?
• Asking the other party genuine questions that help identify their needs: one common reason for resistance and lack of cooperation, is that the parties do not feel that their needs are understood. Sometimes a question such as: “What do you need me to do?”, or even just “What do you need in order to… (let me pick up the children at your house)?” may go a long way.
• Making clear requests and proposals: this is the other side of asking questions. Be clear about your requests and proposals. For example, “I would like you let me talk to the children for however long they want. We could set a time for the call. How about before bed time?” Etc.
• Making counter proposals: when the other party’s proposal does not work for you, make another suggestion.
• Having a range of proposal options, so if one does not get the agreement of the other party, you are not stuck.
• Being flexible and thinking out of the box: this refers to both coming up with ideas for requests and proposals, but also to trying new ways of communicating with the other party. The mediators will help you do that. For example, they may ask you to repeat to the other party what you have heard. Take this as an opportunity to try new ways of communicating, ways that you can use in the future as well.
• Working with the other party (not against them) and with the mediators towards a solution.

Possible outcomes of divorce mediation

A specific and rather consistent outcome of mediation is an improvement in the communication between the parties. It is not uncommon for the parties to a case to have been completely out of touch with each other for months (even years), and even when they have been in touch, most parties claim that their level of communication is “low”. Through mediation the parties usually move to a new level of communication.  They reopen a channel of communication, and with the help of the mediators, they try out new ways of communicating with each other. They often make “communication guidelines” for the future, and sometimes they lay out those guidelines in their settlement agreement.

A more general outcome of mediation is a “wholesome” satisfaction of the parties, on three levels: the parties are satisfied with the content of the agreement (substantive satisfaction); they feel that the feelings and emotions they brought to mediation were acknowledged by the mediators and by the other party (psychological satisfaction); and they are satisfied with the way the process was managed (procedural satisfaction). This threefold satisfaction is what makes mediated agreements usually sustainable in the long run.

Who is divorce mediation suitable for?

 

Mediation is not a one-size-fits-all tool. Because of the power that it gives to the parties, mediation is as good as the parties make it. And making a good (productive, satisfying) mediation takes hard work: the parties must be willing to work with each other, with the mediators, and within the process. Some people may not be ready for mediation, some may prefer to have a third party make the decisions for them, others may prefer to go by the letter of the law and have that enforced in court, others still may want to litigate, etc. Being conscious of what mediation is and what can be achieved through mediation helps with setting realistic goals and expectations.

Dispute Resolution Center involvement is becoming a more popular alternative for resolving disputes between divorcing spouses and in resolving differences in a parenting plan.  It can be more time efficient and cost effective when dealing with minor disputes.  However, more complex disputes and/or disputes involving more contentious relationships often require the involvement of an attorney.  Two additional articles will following that address the issues specific to attorney and court-involved dispute resolution and mediation.