What does a family mediator do?

Recently, a friend called from out of town and asked about mediation. He and his wife are divorcing, and he was having trouble negotiating with her. While they are not really that far apart in their positions, it was okay because he and his wife had a hard time communicating. Since my friend couldn't be objective, I thought I might not be the right person to start negotiations. It is almost impossible to negotiate if one of the parties is involved and cannot see the "forest of trees". Since they were using a family mediator, I suggested that he speak to the mediator and ask him to negotiate. My friend's response was a bit puzzling; This mediator wanted the parties to negotiate with each other, which was difficult for me to understand. That brought me to the subject of this article on "What does a family mediator do?"

A mediator is like an ombudsman who negotiates between the parties. To negotiate fairly and neutrally for both parties, a mediator must understand the needs of the parties. To make that determination, a mediator must have good listening skills, patience, tolerance, flexibility, creativity, and persistence, as well as the ability to handle conflict and be empathetic to affected parties. While listening to the parties, the mediator must also be very careful not to project their opinions or values ​​on the parties and risk presenting problems that are not their concern.

Once the mediator has helped the parties narrow the scope of matters important to them, they will often meet privately with one party or another to present the other party's point of view. This meeting, known as a caucus, is private so that a Mediator can challenge the position of one of the parties, without diminishing it in front of the other party. The mediator could challenge the party by pointing out weaknesses in his position, for example. Although this method of evaluation is very useful in bringing the parties closer to an agreement, it also risks alienating the party. Often, if the mediator expresses the other party's point of view too strongly, the mediator may appear to be taking sides. This can usually be alleviated beforehand; If the mediator includes any explanation of this evaluative role early in the process, the parties will know that what the mediator does to one, he or she will do to the other equally.

The mediator, as an objective third party, is often able to identify options that the parties may not think of themselves. This creative component of the role of a mediator is what most mediators enjoy. The parties to the conflict often become so entrenched in their positions that they see the agreement only as weakness. However, the mediator can often create solutions that can incorporate elements of commitment and gain for each party. Being able to "think outside the box" is, therefore, a critical skill for an effective mediator. The mediator can come and go between the parties in an attempt to bring them closer to consensus until a resolution is reached.

If an agreement is reached, the mediator must ensure that it is reduced to writing. However, that does not mean that the mediator must be the scribe. When the parties are represented by attorneys, attorneys generally draft the agreement with the mediator simply by making sure it is done. If the parties are not represented, then the mediator will generally write the agreement as well. Once drafted, each party must sign the agreement, which then becomes binding on the parties and enforceable. In family mediation, the settlement is called a Marital Settlement Agreement (MSA) and will include a Parenting Plan if children are involved. Once signed, the MSA appears to the judge at a final hearing (such as a trial), in which the judge will incorporate the settlement into an order that can be enforced by the court.

While we are on the subject of what a mediator does, the question arises: what does a mediator not do? First, a mediator cannot practice law or a secondary profession that he or she has while mediating. A mediator must at all times be an impartial and objective third party whose sole function is to facilitate the mediation process.