Q: What is the most difficult part of mediation?

A: Bringing both parties to the mediation table -- and helping them to understand that mediation works effectively to resolve disputes!
 
I often will listen to a voicemail or read an email from a prospective client who is desperate for help. I respond by saying that I offer a no charge 15 minute confidential phone consult. That consult is an opportunity for a prospective client to ask questions about what the mediation process looks like and how I work with clients. The consult is also an opportunity for a new client to share with me what he or she wants to tell me about his or her particular dispute. I ask the person who has reached out to me to take a look at my website before our call since the website has a lot of information about mediation. There are two parties to a dispute.
 
Sometimes, the second person does not want to talk to me because he or she is not ready to consult with a mediator. Often the person who first contacts me is ready to move forward and the second person is not. If the case is a family case, the parties may have tried individual counseling or couples counseling before contacting me. It is never helpful to push the second person to speak to me. I wait until the second person is ready to contact me. Sometimes the second person contacts me that day or within a week and sometimes the second person contacts me a year later.
 
I’ve had cases where couples have been separated for a long time – even 12 years -- before they both contact me and say that they are ready to divorce. I have also had cases where I get an email that was written at 1 am from a person who is ready to divorce but has not yet told his or her spouse.
 
When the second person does reach out to me, he or she will ask, “What are the next steps?” I respond by saying that the first step is the no charge confidential phone consult. The next step is for each party to fill out confidential intake forms that gets each party thinking about his/her goals, challenges and fears in mediation. I also send an Agreement to Mediate that spells out what mediation is and how we will work together. Last, I send financial worksheets for each party to fill out regarding bank accounts, investment accounts, retirement accounts, personal property, real property, health and life insurance, vehicles, and credit accounts, among other items.
 
It is important to mention key mediation concepts to prospective clients during the intake calls so that they understand during the phone consult what to expect, including:

• A mediator is neutral at all times; my job is to facilitate negotiation and communication and to manage the mediation process;
• Mediation is voluntary and confidential; we go at a pace where everyone is comfortable;
• Sufficient disclosure is required with regard to financial information;
• My job is to empower the parties to identify issues, brainstorm solutions, evaluate those solutions by reality testing and asking questions, and to come to joint decisions on each issue;
• We use interested-based negotiation in mediation;
• I am trained to acknowledge the presence of emotion; however, mediation does not look like a therapy session;
• I will be reframing, summarizing, and paraphrasing to make sure each party feels heard;
• I may help to assemble a team of advisors if needed and desired, such as a divorce financial neutral, therapist, and/or health insurance broker;
• Each party has the right to consult with a lawyer at any time during the mediation process;
• I will draft an agreement at the end of the process after all joint decisions are made; one signed, the agreement is legally binding;
• I encourage a legal review of the agreement; even though I am an attorney, as a mediator my job is to be the neutral and not the advocate

 
“I like to listen. I have learned a great deal from listening carefully. Most people never listen.” — Ernest Hemingway