Patting Ourselves on the Back Over Making Fire

I went to a mediation conference last week.  It was arguably a session where family lawyers were to learn ways to “re-tool” their skills for family law mediations.  In fairness for the rant into which I am ready to devolve, I seriously thought this conference was for “family law mediators,” not family lawyers alone. I just didn’t expect it to be one where I walked away feeling mortified for the state of mediation in Tennessee.

I’ve discussed the technique of “shuttle diplomacy,” where a mediator moves offers from room to room in an attempt to bring both parties to a compromise solution, previously. I don’t like it, and I don’t think it can be considered actual mediation when no party collaboration actually takes place. One of my Wevorce colleagues remarked on a recent retreat such matters would be just as efficient and spend less of the client’s money if the lawyers just talked the matter out over the phone.

She’s got a point.  If there’s a reason for shuttle diplomacy to be called “mediation,” I don’t see it.  Moreover, I don’t see a need to take parties to mediation if they’re not going to agree on anything.  Tennessee acknowledges this in a statutory provision for mediation; T.C.A. § 36-4-131(b)(5) allows the court to waive mediation if “the court finds a substantial likelihood that mediation will result in an impasse.”  Before anyone starts moaning about the necessity of shuttle diplomacy in situations where domestic violence has occurred or is likely to occur, § 36-4-131(d) gives domestic violence victims the choice of whether mediation will occur. Isolating the parties in separate locations and having a central “authority figure” speaking on behalf of both parties is therefore counterproductive to the process of mediation, wastes party time and money, and gives no one the chance to participate in a transformative experience that shows despite extreme differences and emotional turmoil they can still come to an agreement with the person they least want to see.

One would expect those professionals attending a mediation conference to share similar views, or at least have a sound foundation for understanding why parties need to be kept at the table and in the presence of a neutral.  Sadly the exact opposite was what I found to be the case.  Numerous objections kept getting raised to keeping parties at the table during a mediation, including “They really don’t want to see each other,” “these two haven’t spoken in some time,” “Mr. or Mrs. (x) just feels uncomfortable with the process,” and more.  Most of this amounted to one thing a presenter at this conference succinctly stated in an uncomfortable truth: laziness is prevalent in mediation sessions and mediation chambers.

Another big problem with mediation as it occurs in the areas where I live and work is the notion of keeping the parties present for the purposes of finishing the mediation in one extended session.  This makes sense to mediators who cater to attorneys, because both are used to working extensive hours during a day on one project until it’s completed or there’s nothing else that can be done.  Four or five hour sessions can be the norm; most mediators I know charge for a minimum of two hours in their contracts.  My biggest issue with this process is that it does nothing but tire a client. We tend to forget most parties have jobs and lives beyond their respective case because the case is all we see.  Tennessee requires mediation for families with children, so we have legal professionals who see this as a means of “getting things done” by forcing a client to sit in a room for one day until the process is finished.  If we reach impasse or a limited agreement, we then see the matter as “ready for trial” and move on.  If we get an agreement, we pat ourselves on the back for “settling” a case and then bill the client once the final decree is issued.

Take a look at where the client sees this process, or where the parties see the mediator, and the issue with this style of handling a case becomes crystal clear.  Consider the case of “Maria Smith,” a retail salesperson at Gap making $7.25 an hour.  She’s going through a divorce with her husband Jose. She’s been at work on a full eight hour shift prior to the mediation, where she’s been yelled at by six different customers for not magically getting what they want “out of the back” and her manager for not “keeping the smiles for the customer.”  She’s had to arrange for child care the day of the mediation for John and Mary because she’s heard from someone these sessions can go up to six or seven hours, and now she’s got to sit in a room with the one person in the world against whom she harbors the most resentment to fill out a parenting plan and set child support?  It’s no wonder Maria ends up feeling stressed and tired before she even walks into the mediation room, and by hour three she’s ready to agree to anything just to get the process over with.

It’s no wonder the parties feel this “mediation style” leaves them with only hollow agreements and nagging suspicions the problems will continue after the case is settled.  It’s no wonder mediators are starting to draft “contracts” requiring parties to state they’ve read and understand the agreement reached during a session and that said agreement was signed freely and without duress.  It’s no wonder that this system is not working in the manner it’s currently used.  And yet we continue to congratulate ourselves as mediators and attorneys for working in these styles that produce no lasting agreements, give parties little satisfaction the pie has expanded, or even contributed to the outlook of mediation as a positive means of resolving conflicts as a whole.

The conference coordinators, people with good intentions, decided this was a means of “educating” and “informing” attendees on good practices for mediations.  Yet the “tips” and “suggestions” included such platitudes as “come prepared,” “determine what secrets you want to save for trial,” “eat in that day,” “tell the parties to bring a book and expect down time,” and “arrange for child care because you’ll be there all day.”  None of this is “retooling” mediation skills for family law or family lawyers-it’s closer to congratulating yourself for learning how to make fire by rubbing two sticks together really fast.

My eventual frustration caught up with me and I began asking pointed questions about why we didn’t keep the parties in the same room.  The most I got was a concession from a presenter that yes, keeping parties together produced more sustainable agreements, gave divorcing couples transformative moments where they realized they could get along with the person they least wanted to see, and even gave them a chance to develop a better co-parenting model than shuttle diplomacy afforded.  Yet this was “hard work,” and sometimes it was easier to slip into “lazy” mode and just let the shuttle method take over.

Mediation is not for the lazy.  It is not for those who simply want to collect a paycheck from parties and move on to the next case.  It was designed as–and still remains–a viable alternative for settling cases out of court, and every use of shuttle diplomacy as “mediation” tarnishes the efficacy of the method and gives ADR as a whole a bad name with the parties subjected to it.  Giving mediators and legal professionals the tools to keep shuttle diplomacy available and “viable” as a method for resolving cases does nothing but empower legal professionals, and mediation isn’t designed for that purpose.

Let’s remember that first and foremost Rule 31 makes this about the clients, not us.  Let’s stop patting ourselves on the back for learning how to make fire in mediation and start looking for ways to develop something closer to time travel.

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