1. What is mediation?
   Mediation is a process for reaching agreement in which a trained neutral person helps you identify the issues, gather the necessary information and documentation to enable you to make informed decisions and explore settlement options, and, once agreement has been reached, prepare a written agreement. The mediator is not a judge and does not “decide” the outcome. Rather, the mediator’s job is to help you and your spouse resolve the dispute between you on mutually agreeable terms.
   
   
2. What is family mediation?
   Family mediation is a special kind of alternative/appropriate dispute resolution for family matters, including: divorce, separation, annulment, child custody, parenting time (visitation), division of property, child and spousal support, prenuptial agreements, domestic partnership agreements, and the dissolution of domestic partnership. The goal is to help you and your spouse resolve the issues outside of court so you can have an uncontested divorce. Dissolving a marriage in a cooperative—rather than a combative—manner is particularly helpful if you have children.
   
   
3. How does mediation work?
   With the help of a mediator, you and your spouse will identify, negotiate, and equitably resolve the issues raised in divorce. Once this occurs, the mediator may draft an agreement for your review and to review with legal counsel if you wish. If everyone is satisfied, the agreement is then sent to court for an entry of judgment. In the case of a prenuptial agreement, the document is a legally enforceable contract.
   
   
4. How much will mediation cost?
   Mediation typically costs substantially less than a contested divorce. The cost will be determined by the complexity of the issues, the time required to reach agreement, and the willingness of both parties to work on resolving the issues. Hourly fees are charged for mediation services and preparation of agreements.
   
   
5. How long does mediation take?
   A typical mediation takes two to five sessions of around two hours each. If the mediation is successful, our office can draft a divorce agreement for you and your spouse to review.
   
   
6. Is mediation confidential?
   Mediation is confidential and nothing that is discussed in mediation can be used by one party against the other. The mediator cannot discuss anything that occurred in mediation with others unless you request it and sign a release for the mediator to talk to attorneys, accountants, or psychologists.
   
   
7. Why should we use mediation?
   Although mediation is less expensive and time consuming than litigation, the best reason to use mediation has nothing to do with time or money, it has to do with relationships. Research shows that families who mediate their differences have a substantially better after-divorce relationship than families who litigate their differences. If you have children, mediation helps construct and preserve a solid foundation for co-parenting. If you don’t have children, mediation helps you end your marriage with dignity and respect, rather than anger and blame.
   
   
8. Should we try mediation first?
   Mediation is usually a better first course of action, although there are some exceptions. Mediation is generally not suitable in cases of ongoing or threatened domestic violence, or if one of the parties is mentally incapacitated due to psychiatric problems or substance abuse. If one party believes that assets are being hidden, mediation of financial matters may be premature until an attorney has completed legal discovery. These problems do not always completely preclude mediation, but they may require special attention. A skilled mediator is trained to manage imbalances of power, level the playing field, or even terminate the mediation if the process is not working.
   
   
9. Do I still need an attorney?
   Although most issues can be resolved with the help of a mediator, each party is encouraged to review the decision made in mediation with an independent attorney before signing an agreement. Even if the mediator is an attorney (as Ingrid Slezak is), the mediator does not give legal advice to the parties, but may point out where the legal positions of the parties might differ. In some mediations, attorneys attend mediation with their clients, either for all or some part of the process. No final decisions are made until each party is entirely comfortable that they have obtained the necessary information and advice they need.
   
   
10. What about my other professional advisors?
    The mediation process may also include other professionals, including independent accountants, financial planners, appraisers, custody evaluators, psychologists, or other therapists. Our office is skilled in working with all types of professional service firms. These collaborative efforts often result in a greater degree of client satisfaction, a stronger commitment to follow through on the terms of the agreement, and significantly less emotional and financial strain on the participants.
    
    
11. Will I have to go to court?
    A judge signs a divorce or modification judgment or decree; however, if all issues are agreed to, the documents can be mailed or delivered to the court without the necessity of the parties appearing.
    
    
12. Is mediation binding?
    Mediation itself is not binding, but the agreement reached in mediation will have the same effect as a court decree after the parties sign it and the court approves it. Research has shown that parties are more likely to comply with mediated agreements than orders imposed by the court.
    
    
13. What guarantee do I have that the outcome will be fair?
    In mediation, you will not agree to anything until you are satisfied that the decisions you make are appropriate.
    
    
14. My spouse and I are very angry. Will mediation still work for us?
    Any divorce is usually accompanied by strong emotions, including anger. Mediation does not require that you feel particularly kindly toward your spouse, only that each of you fully disclose all material assets and be willing to work at resolving issues of mutual concern (e.g., future needs, children, equitable distribution of assets, etc.). You need not even be in the same room with your spouse while the mediation takes place. As a mediator, Ingrid Slezak is skilled in facilitating communication between couples who do not communicate well.
    
    
15. If I start mediation and need a little more time to sort things out, can the process be suspended?
    Certainly. Mediation is voluntary and can be suspended or terminated by either party at any time. The mediator may suggest a break i order for one or both of the parties to complete homework or research, such as educational resources, job opportunities, career counseling, financial planning, etc.
    
    
16. What happens if we can’t agree?
    Even if you cannot resolve everything, mediation can still help narrow the issues and limit the time and expense you spend in court. Mediation does not mean giving up your right to litigate other parts of your dispute if you wish. If you do decide to litigate, mediation proceedings are not admissible in court, so you can proceed as if mediation had never taken place.
    

Article: Bridging the Gap - Mediating in Situations of Power Imbalance
by Ingrid E. Slezak, JD
Published in the "Oregon State Bar Alternate Dispute Resolution Section Newsletter,"
September 2009

Every family law mediator has encountered a situation somewhat similar to this:

After 25 years of marriage, the kids are grown and Husband and Wife are emotionally done with each other. Husband wants a divorce so that he can move on with his life. Wife is angry that it's come to this, but can't stand another minute. Husband has always controlled the finances, both at home and for his business, Wife has no marketable skills or current work experience and feels bullied by her husband. Husband offers the wife the home and $5,000 per month for five years on a "take it or leave it" basis. Wife would rather take it than confront her husband. After all, "he always gets his way." They come to mediation because Husband says it will cost less.

This situation raises, among other things, the issue of whether mediation is appropriate in the light of an imbalance of power. If the fundamental principle of mediation is that parties exercise self-determination in reaching resolutions that meet their respective interests, is it appropriate to mediate at all when participants have markedly unequal power or status? Assuming that mediation goes forward, what is the mediator's role in such cases? Is it to advocate for the powerless? To work toward a solution that is equitable and just? To advocate for a settlement that conforms to statutory and case law? To make whatever resolution is possible under the circumstances? Or it is presumptuous to intervene when the mediator cannot predict how a perceived imbalance or power actually plays out? There is a subtle dance between couples that unfolds during mediation and the mediator risks compromising another fundamental principle of mediation - that of mediator neutrality.

Numerous commentators have addressed this issue without clear-cut conclusions. The purpose of this article is to look at that question through the prism of mediator's practice. My comments address pro se mediations, and for purposes of this article, do not include attorney/assisted mediations, although having attorneys at mediation may, in fact, be one strategy to address perceived power imbalances.

In his book The Dynamics of Conflict Resolution, Bernard Mayer defines power in the context of conflict as "the ability to get one's needs met." He distinguishes between two types of power: structural, and personal. Structural power is situational. It includes the resources that persons possess-their authority, assets, earning power, status, contractual rights and so on-and the legal and political framework within which the conflict occurs. Personal power includes the qualities of the individual-determination, focus, eloquence, forcefulness, knowledge, empathy-that help him or her advance his or her interests.

Power comes in many forms, some more subtle than others:

• Formal authority

• Legal rights

• Information and expertise

• Connections

• Tangible assets

• Intangible personal qualities

• Power to reward

• Power to punish

• Power over process, closely related to:

• Power to define issues and options

• Power to obstruct

• Moral power

•Perceptions of power

Persons may or may not be aware of their own power, or may mistake their own or another's resources for power. Conversely, a person may project a power they do not in fact possess. Power may be most potent in its latency, not in its use. And power may be applied in a variety of ways: 1) through an appeal to values and beliefs (normative power); 2) through an appeal to self-interest (utilitarian power); or 3) by threatening sanctions or taking away options (coercive power).

Inevitably the parties in family law mediation have different sources and degrees of power, differ in their awareness of the power they possess, and differ in their ability to assert their power to advance their interests. Many factors enter into the power balance: education; professional status; earning power; self-esteem; depression; sex-role ideology; a sense of guilt or victimization, attitudes of entitlement or obligation. In spite of the complexity, though, it often occurs that one spouse enters the mediation clearly subordinate to the other. In such a case-in the case described at the beginning of this article, for example - should the mediator intervene at all? And if the mediator does intervene, how can he or she redress the "imbalance of power?"

Mayer is not alone when he states that "balance of power is a confusing and possibly meaningless concept. It's not a measurable quantity. Rather, one should look at differences in power and whether someone has the power to make something happen. ... the idea that power can be balanced to produce some equality is misleading as it fails to account for the dynamics of power."

Instead of equality, Mayer says, what is needed is that each party have "an adequate basis of power to participate effectively in conflict...they must be able to engage with some hope of being influential and effective." If a party lacks an adequate basis of power due to domestic violence issues, or other emotional, psychological or social factors, a mediator should postpone, withdraw from or terminate the mediation. Christopher Moore, in his book, The Mediation Process, writes "all parties must have some means of influence, either positive or negative, on other disputants. This is a prerequisite for a settlement that recognizes mutual needs."

Our starting point should perhaps be the Model Standards of Conduct for Mediators adopted by the ABA, the Association for Conflict Resolution (ACR) and the American Arbitration Association (AAA). Standard VI, Quality of the Process, states:

A mediator shall conduct a mediation...in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.

If one party has the means to force an "unsatisfactory settlement" on the other, says Moore, ..."the mediator will have to decide whether and how to assist the weaker party." Moore recognizes, however, that "empowerment of the weaker party by the mediator requires very specific intervention moves-activities that shift the mediator's function dangerously close to advocacy."

And here is the debate that splits the field. One school believes that a mediator has an obligation to create fair and equitable settlements and in order to do so must use techniques to shift the balance of power. Another school argues that mediators must not meddle with the power relations of the parties because to do so would compromise the mediator's impartiality, and that a level playing field is an illusory concept.

I submit that the mediator can remain neutral and employ a number of strategies to address inequities of power. The mediator's commitment is to both parties. His/her primary goal is to help them reach an agreement that works for both of them, and in order to do that the mediator must assist both parties in asserting their legitimate interests. Indeed, a party may be dominant as to some issues and disadvantaged in others. The husband may be more dominant and forceful in the matter of financial assets, a wife more dominant in the matter of the children, or in her use of anger to achieve her goals. The mediator may need to help the wife assert her interests productively in regard to assets and help the husband assert his interests with regard to custody.

Bridging the power gap in mediation is not about reaching an agreement that a mediator feels is just or equitable. It is not about favoring the weak against the strong. It is about assisting parties to overcome the barriers to negotiation and agreement that are presented by overreaching power on the one hand or passive weakness on the other. The mediator creates a forum and a process in which both parties are able to assert their respective needs and interests.

As the intermediary, the mediator has numerous powers and tools to use toward this end. Moore defines some as structural, others as personal.

• Providing a safe and respectful forum for negotiations in which each party can feel empowered.
  
  
• Managing the sequence in which issues are addressed.
  
  
• Applying appropriate levels of pressure to the parties to encourage movement toward agreement.
  
  
• Managing and clarifying communications between the parties.
  
  
• Schedule management, so that communications, offers and responses keep moving toward agreement.
  
  
• Information exchange, ensuring that both parties are satisfied that the relevant data is on the table in a usable format.
  
  
• Bringing experts into the process as needed to resolve issues.
  
  
• Exerting influence over the parties, by virtue of the mediator's experience, expertise, empathy and impartiality. During negotiations the mediator may earn a respect that can in turn be used to encourage agreement.
  
  
• Formulating options and alternatives. This is perhaps the heart of the mediator's role: "If not X, then how about Y?" Quantifying options enables the parties to assess and compare them.
  
  
• Using doubt to soften positions. As an "agent of reality" the mediator questions assumptions and explores consequences.
  
  
• Identifying the benefits, both tangible and intangible, of a proposed settlement.

These are some of the powers the mediator has that can be exercised in an impartial manner. What can the mediator do, however, when it is evident that one of the parties feels hopeless, unable to participate, dominated or intimidated by the other party?

There are many steps the mediator can take in an even-handed way, without becoming an advocate for one party. In joint session or in caucus, the mediator can help the disadvantaged party recognize and use the powers that he or she already has. Exercising the power to say "not so fast" or simply "no" can trump even the most aggressive ultimatum. By emphasizing the voluntary nature of mediation, exploring the consequences of the termination of the mediation, or a range of outcomes in an alternative forum such as litigation, the mediator's process creates an opportunity for the person who feels powerless to explore his or her interests.

First, the mediator can arrange the setting and the format for the mediation in a way that makes both parties comfortable. The arrangement of a table, the mediator's body language, separate conference rooms, breaks for tea, water or coffee. If the mediator moves - to an easel or across the room - the conversation is redirected and focus is deflected from the parties to the mediator.

Second, and perhaps most important, the mediator can help the party understand and articulate his/her interests in the matter. One way is to give the parties assignments that require them to develop the necessary information that leads to informed decision-making. Another is to ensure that each party has obtained sufficient financial disclosures to develop a framework for options to be generated and assessed.

Third, the mediator can brainstorm with the parties and add suggestions to the different options that might help the parties achieve their respective interests. The mediator can help the party visualize (and sometimes quantify) the consequences of different options-including the consequences of capitulation.

Fourth, the mediator can validate the concerns of each party, including the party who feels that he or she is in a power-down position, validating those interests and helping each party separate out emotions, fears, resentments, values, and real interests that need to be protected, including interests of outside parties.

Fifth, the mediator can help each party see what power he/she has in the situation, which may be unknown to the party - or to the other. The more the parties perceive that both have power to wield, the more likely that they will negotiate in good faith, look for trade-offs, and move toward agreement. In the example at the beginning of the article, the wife may not know that she has power in her anger, that she has the power to explore all possible options, the power to say no, the power to do nothing. Marriages, especially long marriages, involve reciprocity, sometimes subtle, and it may be clearer to an observant mediator than to the spouses what compensatory powers the "weaker" spouse may enjoy.

Sixth, the mediator can ensure that teach party's interests and positions are put forward effectively, restating and reframing as necessary. If a party feels intimidated, verbally or otherwise, the mediator has the power to set a structure that will prevent this. The mediator can redirect a conversation, or question the relevance of inflammatory topics, behavior or issues.

In using these techniques the mediator is not acting as an advocate for one or the other, nor is the mediator perceived as favoring one side over the other, which would be fatal to the process. Rather, the mediator appears as the guardian of process, ensuring that each party has a chance to be heard, that each party's concerns are recognized and explored, and that all possible options are considered, both as they might meet the immediate interests of the parties and for their subsequent consequences. Full participation by each party, each wielding his or her power with full knowledge of his or her options, is the best way to reach an agreement based on the principles of self-determination and informed consent.

Article: Mediate, Don’t Litigate

When a relationship is in conflict, trust is the first thing to go. A decision to divorce or separate is often made by one person in the relationship without a lot of discussion or agreement with the other. Even when the decision is a joint one, the period of time from when the word divorce or separation is spoken to making the choice of how to proceed can be a no-man’s land of indecision and panic. In this vacuum, anxiety and fear have ample room to take over. Neither person knows what the other is really thinking or about to do. Is my spouse going to move money around, empty bank accounts, or hide assets? How will I support myself and the kids? Can I keep the house? How do I protect myself? How can we afford this?

Things can escalate

These are normal reactions to the inevitable stress of an impending separation or divorce. Many couples are able to calm their fears and proceed to work things out. Others take unilateral action. They hire the best lawyer they can (or can’t) afford. They get restraining orders from the court. They take half — or all — of the cash out of the bank. The cycle has begun.

Each one thinks that he or she is acting defensively to protect their interests, but these actions are always perceived as aggressive by the other spouse, who responds by defending him or herself. The spiral starts: a series of escalating moves that intensify the conflict and erode what little trust remains. Friends and relatives will urge you to protect yourself, assert your rights, and hire a tough lawyer! Once that occurs, you have made the most important decision you can make. You have turned your conflict over to other hands. It will take a long time before things get calmed down.

Even when a couple is talking and trying to handle things civilly for themselves and the kids, it is impossible not to feel anxiety and fear for the future. The ending of a relationship is often a sad and angry business, and the future outside of the relationship is unknown and scary.

Ninety to ninety-five percent of divorce cases are settled before they go to trial. But litigation has a life of its own, and cases follow certain patterns before they reach the negotiation stage: attorney/client consultations, discovery, depositions, expert witnesses, appraisals, hearings, telephone conferences, settlement proposals . . . the list goes on, and so do the bills.

What is mediation?

Mediation is a process in which a skilled, neutral mediator works with the parties, using a step-by-step approach, to gather information, educate the clients, analyze the data, generate options, and, once all the parties are fully informed, negotiate a fair and informed settlement. The parties are given information along the way about their specific issues, and where there are further questions, the couple is encouraged to get independent advice from attorneys, accountants, custody evaluators, psychologists or other professionals. Mediation does not eliminate the right to have an attorney advise you of the best options to protect your interests; rather, it works in conjunction with attorneys to allow individuals to collaboratively negotiate an agreement for themselves. Mediation can help you work out property settlements, child support, spousal support or alimony, as well as custody and parenting time plans.

You save money

Even if both parties have retained legal counsel, the cost of settling through mediation is substantially less than settling through attorneys. Rather than paying these highly skilled professionals full-time, mediation allows you to use them selectively and where appropriate to ensure that you’re getting the information and advice you need. Once you reach agreement on all issues, a contract known as a dissolution judgment will be filed with the court. This contract lists and divides your property and financial obligations, establishes custody, parenting time, child support, and spousal support or alimony. Even if you can’t reach agreement on everything, many issues can be resolved in mediation, limiting the issues that might need to be litigated.

You’re in control

Mediation allows people who have a disagreement – and who may even be in high conflict with each other – to resolve their differences in a way that is fair to all, consistent with state law, and meets the interests of each of them. It also helps parties focus on the future, and where children are involved, on a new relationship as parents. The outcome of the mediation is in the hands of the parties because they control the result. Mediation is private and confidential. If mediation fails, the parties can turn their dispute over to a judge or an arbitrator to make a decision for them. But when the parties are able to work with a mediator to settle their issues, they are more likely to tailor a result that meets their particular circumstances. And when children are involved, mediation promotes the conflict resolution skills that enable the parties to put their “marital argument” behind them and cooperate in the task of parenting after divorce.

Books on divorce

Condrell, K. N., & Small, L. L. (1998). Be a great divorced dad. New York: St. Martin’s Griffin.

A handbook that covers the practical and emotional issues facing divorced fathers today. Offers advice, guidance and support for the ever-growing number of divorced fathers who seek to remain “real” dads, but fear that their situation after divorce will make that impossible.

Gold, L. (1992). Between love and hate: a guide to civilized divorce. New York, Plenum Press.

Filled with checklists and exercises, as well as case histories of couples who have found that mediation really works, Between love and hate empowers couples to negotiate, handle sensitive issues, and resolve conflicts in a way that allows them to emerge from divorce with their emotional well-being intact.

Ackerman, M. J. (1997). Does Wednesday mean mom’s house or dad’s? Parenting together while living apart. New York: John Wiley & Sons.

In this wise and practical guide, Ackerman helps parents deal with the legal and emotional issues of child custody in divorce. He does not focus on “winning” custody battles but on finding the best arrangement for both parent and child. This book guides parents through coping with children’s guilt, fear and feelings of abandonment, as well as practical issues such as custody disputes, relocation, remarriage, and long distance co-parenting.

Parker, K. F., & Jones, V. (1993). Every other weekend. Nashville, Tenn: T. Nelson.

Straight talk to divorced men who love their children but no longer live with them.

Ahrons, C. R. (1994). The good divorce: Keeping your family together when your marriage comes apart. New York: HarperCollins.

Ahron’s landmark longitudinal study of randomly selected post-divorce families offers hope that splitting spouses may be able to handle their breakup in a way that will permit both “adults and children [to] emerge at least as emotionally well as they were before the divorce.” The Good Divorce offers advice and explanations to troubled couples for whom “staying together for the sake of the children” is not a healthy or viable option.

Neuman, M. G., & Bashe, P. R. (1998). Helping your kids cope with divorce the sandcastles way. New York: Times Books.

Neuman takes a hands-on approach and believes that children need not be permanently scarred by divorce—that with work and time, divorce can actually become a positive force for change. A powerful tool for protecting children caught amid parental struggles. The book is packed full of suggestions on everything from the best way to break the divorce news to a child to facing the holidays, visitation, custody arrangements, anger, discipline, co-parenting, single parenting, overcompensation, sorrow, custody fights and much more.

Ross, J. A., & Corcoran, J. (1996). Joint custody with a jerk: Raising a child with an uncooperative ex. New York: St. Martin’s Press.

This hands-on, practical guide offers many proven communication techniques that will not only help readers deal with a difficult ex by describing examples of common problems, but also teach them how to examine their roles in theses sticky situation.

Ricci, I. (2000). Mom’s house, dad’s house: Making two homes for your child. New York: Macmillan.

This essential guide to life after divorce is a handbook for getting along and raising sane children in the wake of a divorce. Ricci offers specific techniques parents can use to establish a working, cooperative relationship with each other.

Emery, R. E. (1994). Renegotiating family relationships: Divorce, child custody, and mediation. New York: Guilford Press.

Robert Emery has written both a ‘how-to’ and a ‘why’ book. Emery takes mediators through a step-by-step process of six sessions lasting two hours each to achieve a win-win, rather than win-lose divorce and custody settlement. This is a well-written book containing many germs of truth about social relations as well as highly specific instructions for accomplishing mediation between conflicting parties. It is a useful work for mediators, judges, lawyers (whom the author recommends for reviewing mediated agreements), state legislators who might become involved in legislation requiring mediation prior to litigation, the general population, particularly those anticipating divorce or those who have already gone through one, and anyone involved in an ongoing intimate relationship.

Adler, R. E. (1988). Sharing the children: How to resolve custody problems and get on with your lifeBethesda, Md: Adler & Adler.

What distinguishes this book from others on divorce is its focus on the need for businesslike cooperation between the divorcing parents for the sake of their children. Adler offers much practical advice on how to achieve such cooperation, even suggesting how to choose a lawyer sensitive to this issue and including a sample parental agreement. Summary outlines and appendices, which include a self-help checklist, a comparison of children’s needs at different ages, and a sketch of the custody laws of the different states are extremely helpful.

Books on mediation

Butler, C. A., & Walker, D. D. (1999). The divorce mediation answer book: Save time, money, and emotional energy with a mediated separation or divorce. New York: Kodansha International.

In this accessible question-and-answer guide, two experts address the many issues involved with mediated separation or divorce, from finding the mediator and dealing with emotions to discussing custody arrangements and figuring out financial terms.

James, P. (2001). The divorce mediation handbook: Everything you need to know. San Francisco: Jossey-Bass.

James, an expert in the field of divorce mediation, presents a clear view of what actually takes place in the mediation sessions and shows how couples can create a process that is non-adversarial and healthier for everyone involved.”