Myths about family mediation abound, and are mostly due to a lack of mutual understanding between attorneys and mediators. If you'd like to become more informed in the best interests of your business and your clients, read on!
Must be attorneys, too.
Mediators may be attorneys, or they may not. There are times an attorney background can be an asset in mediation, and there are times it can be a liability. For clarity on the law and the court process, the more mediators know about it, the more likely their client's agreements will flow smoothly through the court system. However, it is possible to learn the basics without being an attorney. Typically attorneys are not trained to help clients communicate clearly with each other in a mutually supportive way.
Are just counselors and aren't too much into touchy-feely stuff.
Mediators come from all walks of life. Many mediators come from a law background, many also come from a mental health background. Mental health training, whether acquired as counselor or elsewhere, is helpful in moving clients towards addressing the emotional and communication issues preventing them from coming to a mutually workable agreement. Unlike counseling, the purpose of mediation is to work towards a specific agreement, typically in writing. Often these agreements specifically address all the point-by-point issues the court needs addressed, such as the parenting schedule, child support, primary residential parent status, how decision-making for the children will occur, division of assets and liabilities and spousal support.
Offer legal advice.
The role of a mediator is to help their clients understand and articulate their wants and needs, not tell them what to do. Mediators may sometimes provide legal information, for example, why to hire an attorney to advise them, or making sure they know whose names are on the deed of their family home, or who the court facilitator is and how they can help. Mediators sometimes ask "reality check" questions if clients are convinced they are entitled to something that there's not a high likelihood they will get in court, for example, getting 15 years of spousal support if they were married only one year and quit a $100K/year job right before they married.
…And attorneys can't work together.
While attorneys can only take their client's side, mediators can't take either side. Mediators want to make sure clients who need help understanding their legal needs go to an attorney, so their interests are properly protected. And most mediators do not file paperwork, and some courts can only spare clients the direct court experience if at least one client has attorney representation. And for attorneys who want to support good parenting, research proves mediation is much more effective than litigation for fostering effective co-parenting.
In Collaborative Practice, attorneys are trained in mediation, as are financial planners, coaches, facilitators and child specialists. They and their clients all agree to work together as a team, to come to an agreement, outside of court litigation.
Are a threat to attorneys.
Mediators strive to minimize costly legal expenses due to fighting between their clients so instead clients can spend more time and money rebuilding their lives, and contributing as much as possible to their children's welfare. However, clients, the courts and mediators recognize it's critical attorneys are part of the process to represent their client's best interest and make sure they're implemented as cleanly and accurately as possible through the court system.
Don't comply with any standards.
While there are no required national standards for mediators, most professional and even volunteer mediators choose to comply with specific professional standards. Some states offer certification, for example, Washington [State] Mediation Association, which is tied to experience, training and a professional standards. Similar ethical and process standards and guidelines adopted by mediators come from organizations such as the Association of Conflict Resolution, the Association of Family Courts and Conciliation and other local organizations such as Oregon Mediation Association. Additionally, certain specialty areas, such as the Collaborative Practice, require compliance with International Academy of Collaborative Professionals standards.
Will suggest a course of action the courts won't honor.
Courts are overloaded, and without clear information otherwise, opt for a one-size-fits all. However, most lives aren't one-size-fits-all. Experienced professional mediators can convey a clear sense of the range of options courts are likely to consider acceptable, particularly if both parents agree, and it makes sense for them and their children. And most mediators strongly recommend their clients' agreements get a thorough legal review before proceeding on to court.
Will make their clients take action not in their best interest.
Mediation as a process is designed to empower and equip clients to create and "buy in" to their own solutions, based on mutual interest, rather than following the dictates of a mediator, an attorney or the courts. Where legal advice or other professional advice is needed for clients to make informed decisions, mediators strongly encourage their clients seek it out prior to finalizing or submitting their agreements. Research reveals clients comply better with an agreement they create themselves.
Can be called as witnesses, or keep key public documents out of court.
Where the Uniform Mediation Act (UMA) is in place, as it is in Washington State, it specifically prohibits mediator and mediation hearsay and notes from subpoena. Exceptions include mediator's responsibility as mandatory court reporters of abuse and neglect of children, the disabled and the elderly, threats of harm to person or property, documents which would normally be made public in the discovery process and the specific information required for disclosure in a mediation malpractice case. Signed client agreements written with the prospective intent for court submission are usable in court. Where UMA is not in place, most mediators require their clients sign at mediation's outset an agreement addressing similar confidentiality and disclosure terms.
Family Mediation is not an option if there's:
Ever been any domestic violence.
While some clients are unable to represent their best interests in cases of domestic violence, in others, mediation can empower them to adequately represent their interests, and get their needs met. Mediators do not want mediation to be used as a way to manipulate their clients to agree to something that the courts, if they had they full day in court, would not support. There are a number of ways mediators can determine if domestic violence is an issue, and techniques skilled mediators can use to minimize the likelihood their clients are intimidated into signing an agreement counter to their interests. Mediators will typically end a mediation if it's clear a client is unable to protect their own interests.
A restraining order.
While mediation is not an option when there are existing criminal no-contact orders, in many cases courts allow mediation despite the presence of a restraining order. Mediation is designed to facilitate safe communication between clients, and can be address how communication will work with whatever restraining order conditions apply. Additionally, mediation can occur without clients meeting face-to-face or communicating voice-to-voice, and mediators can time clients arrival and departure times to avoid contact.
Ever been any issues around substance abuse.
Mediation offers an opportunity to specifically address safeguards around substance abuse concerns. For example, mediation can address the terms regarding supervised visitation, and defining what specific criteria must be complied with for that visitation, such as clean results from random urinalysis and completion of a rehabilitation program. It can also address specifically what it will take for a parent to resume unsupervised visitation, and under what circumstances that visitation would be rescinded.
In summary, there is much opportunity for increasing client satisfaction when mediation and attorneys collaborate.
Washington law requires that the court consider the desirability of one parent retaining the marital home, so that the children will not have to move and have their lives further disrupted by their parents' divorce.
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