Does a Divorce Mediator Always Recommend Mediation?

Does a Mediator Always Recommend Mediation?

Andy Flink and JoAnne Donner CDFA

            As mediators, we are frequently asked about how a mediation session works.  By the time we finish explaining the process, everyone has the same response…..that it’s a terrific alternative to litigation and when two people are embroiled in conflict it’s their best option.  But is mediation always a good idea?  Do we always recommend mediation to parties in dispute?  You might be surprised to know that every so often, deciding to mediate two willing parties in a squabble turns out to be a bad idea.

If both sides are openly willing to mediate, why would there be a situation that, after anywhere from one hour to ten hours, everyone wonders why we bothered to meet in the first place?  Here are a dozen reasons why mediation can be unproductive and when it may have been best not to meet at all:

  1. Missing Information.  Rarely is a case resolved in mediation where there is a lack of discovery or incomplete, unverified financial information. There is already mistrust in the room; this simply adds to it.
  2. Lack of respect.  Knowing how to “act” in a mediation session is important.  We tell mediation coaching clients to pause and consider everything the other side is asking for and offering.  If for no other reason than to appear that you are being respectful and considerate of their position, whether or not you really are.  Parties in mediation have a tendency to “show their hand” through body language, tipping off the other side that respect is merely a song by Aretha Franklin.
  3. Unrealistic expectations. “I get everything and you get nothing.”  Once we mediated a case where the plaintiff demanded a 90/10 split as equitable division because “He was the one who worked all the time.”  This kind of extreme thinking is not unusual but can send negotiations into the no-settlement zone.
  4. Bad timing. Fortunately, courts send almost every case through the mediation process.  Unfortunately, it might be before the disputing parties have completed discovery or are emotionally ready to consider settlement.
  5. It’s a fishing expedition.  The other side shows up for the sole purpose of learning everything they can about what the other side’s position is and why.  They have no intention of settling…and sometime during the day you figure this out.
  6. Subject-matter expertise. When a divorce mediator is asked to do landlord/tenant  mediation or a personal injury lawyer represents a client in divorce mediation, it may not work very well.  Typically, there is no substitute for experience and expertise in a specialized niche.
  7. A missing party.  Virtual communication technology is impressive, but when one party is 3,000 miles away in Seattle and the mediation session is in Atlanta, phone or Skype doesn’t always reveal subtle cognitive or behavioral clues.  It may be difficult to know what the long-distance party is really thinking, since much of what mediators look for are not only verbal cues, but physical ones as well.
  8. Schedule conflicts.  You’re seven hours into a mediation working towards a resolution and suddenly one of the parties declares they have a prior commitment.  While they had plenty of opportunity to reveal this information earlier in the day they chose not to, sending the mediation into a tailspin.
  9. Lack of motivation.  A party prefers to maintain the status quo and strongly resists settlement.  Sometimes this occurs where leverage is solely on one side of the table, or where one party has “everything to gain” and “nothing to lose” by keeping financial and emotional circumstances the way they are for as long as possible.
  10. Polarity or a desire for vengeance.  Rarely do couples in divorce mediation get to divorce at the same time for the same reasons.  One party may feel a need for the other party to “pay dearly,” whether or not this serves their best interests.  When vengeance is a prime motivator, the ability to be fair and reasonable is dramatically compromised.
  11. Inflexibility.  Regardless of the truth, one party sees the facts in a completely different way than the other.  If one party’s parents funded the purchase of the marital home, they may insist that they are entitled to 100% of that asset with no consideration paid to the facts, the law, or equitable division guidelines.  Parties’ perceptions become their reality and, frequently, no matter what the facts are they refuse to alter their position.
  12. History of high-conflict.  Relationships that have been controlled by antagonism,   intimidation, emotional abuse, or domestic violence, can make mediation the wrong       choice.  While mediators are trained to effectively address power imbalances, when one party’s emotional or cognitive competencies are significantly impaired due to past abuse,  a suitable and durable outcome is unlikely.

For mediation to work, it takes a desire for a timely, cost-effective resolution that will keep the dispute out of court.  Key motivators are a willingness to cooperate and to focus on a fair result for both sides.   For couples who will play by those rules, and who want what’s best for the children and the future of the re-defined family, mediation can be the right way to navigate the pitfalls and possibilities of divorce resolution.

Seven Tips for Selecting an Investigator to Conduct A Fair, Unbiased and Professional Workplace Investigation

  From WinWinHR.com (October 13, 2012).

I spoke this week at the HR Star Conference here in Atlanta and at the conference had a great discussion   with some HR professionals on the importance of conducting fair, unbiased and professional workplace investigations.  One of the HR managers mentioned that her company recently received a complaint from a current employee complaining that he was being subjected to a racially hostile work environment.  As I regularly conduct third party, neutral investigations into allegations of workplace misconduct and serve as an expert witness on workplace issues, our conversation turned to the benefits of using an independent investigator as compared to conducting the investigation internally by HR or by the employer’s regular legal counsel.

We all agreed that promptly investigating allegations of workplace misconduct, like discrimination, harassment, retaliation, and hostile work environment, is not only a good business practice but is also important legally.  An employer demonstrates (to its employees and enforcement agencies) good faith and adherence to anti-discrimination and fair treatment policies and laws by promptly investigating issues.  However, unless the investigator is independent and, perhaps more importantly, perceived as independent every conclusion drawn by the investigator is going to be questioned by employees and potentially by enforcement agencies and perhaps plaintiff’s counsel.

A recent  jury award of $313,206 to an employee who sued alleging retaliation demonstrates the importance of the perception of a fair and impartial investigation.  In discussing the jury’s award after the case several jurors said that they considered the plaintiff to have been the victim of an unfair and biased investigation process.  Here is an excerpt from a newspaper article discussing the case:

“A grievance is supposed to be investigated fairly, without any bias,” said juror Debi Mitchell. “This was not a fair and impartial investigation … I’m glad we got to show that their behavior was wrong. I hope they can change the way they treat employees and create a better work environment.”

It is also important for employers to recognize that if they choose to use their regular legal counsel (either in-house or outside counsel) to conduct a workplace investigation that their regular legal counsel could become a fact witness in any future litigation.  If the investigating attorney becomes a fact witness, any applicable attorney-client privilege would likely be waived.  Moreover, the attorney and his or her law firm would be conflicted out from the ability to represent the employer in the litigation.

Recognizing the importance that an investigation be impartial and objective and anticipating that the complaint has the potential to end up in litigation, the person selected to conduct the investigation should:

  1. be someone the parties view as impartial;
  2. be familiar with applicable employment laws and the employer policies;
  3. have the time available to devote to conducting a prompt and thorough investigation;
  4. have investigation experience and good interviewing skills;
  5. be someone with good communication skills who will be an effective and credible witness should the complaint result in litigation;
  6. recognize the importance of confidentiality and be able to maintain confidentiality; and
  7. be able to deliver a complete and accurate report.

Lorene Schaefer is an experienced litigator, former general counsel, and highly sought after workplace investigator.  Contact Lorene directly at lorene@onemediation.com .

Options for Amicable Divorces – Seminar in Atlanta

Whether you like it or not, divorce is in your future.  So far, you and your soon-to-be-ex have been working things out pretty well, all things considered.  Maybe one of you has met with an attorney.  Maybe one of you has met with a CPA.  Maybe neither of you has met with any professional.  But, you are committed…at least for now…to working things out amicably.

Can it be done?  An “amicable divorce”?

The answer is:  Maybe.   To find out whether your divorce will fall on the “contested” or “uncontested” side of the fence, come to this information-packed seminar to learn about options, resources, and what kinds of professionals can help you  make informed decisions that may best lead you to an amicable divorce.

Seminar is $20 per individual and $30 for a couple.  Register by calling 404-720-0599.   The seminar will be held from 8:00 a.m. to 9:30 a.m. on Wednesday, October 17, 2012 and again on Thursday, October 25, 2012 at The Fryer Law Building (intersection of Lenox Road and Buford Highway), 70 Lenox Pointe, NE, Atlanta, Georgia 30324.  For more information or other questions, feel free to email at contact@onemediation.com .

What about the Teenagers Who Are Family Caregivers?

Families come in all shapes and sizes.  Thus, it should be no surprise that family members who take care of a disabled or aging loved one could be just about “anyone,” too.

CNN recently honored a Florida woman who took up the cause of “caring for caregivers” in a very specific and somewhat sobering way:  she helps the young people who are caregivers.

Common images of “caregiving” typically involve a middle-aged woman caring for an aging parent or a spouse caring for an equally-as-old spouse who may have issues with dementia.  It is somewhat jolting to consider the number of teenagers that this Florida woman is assisting with learning how be competent, safe, and informed family caregivers – whether it is to a grandparent, parent or sibling.

Connie Siskowski, the CNN Honoree, works with the American Association of Caregiving Youth to educate and support young people who are faced with these overwhelming responsibilities and who defy most every  stereotype of American Youth that exist.

Ms. Siskowski is not distracted by the question of “if the children are the caregivers, then who is caring for them.”  She plows on at the reality of the immediate situation where two lives and perhaps an entire family is in need of information, training, and skills.  For long-term planning, however, it seems that mediators would be well positioned to assist in creating caregiving plans among the family’s stake-holders, though if the children are the ones doing the work, there may be no one to attend the mediation.