From Minnesota Association of Marriage and Family Therapists Newsletter
THE QUESTION: I have a female client who's in the process of
getting a divorce. Her husband, who I haven't met, has suggested
mediation. In particular, he told her someone in his men's group had
suggested something called "Transformational Mediation." She thinks her
husband's up to something and is trying to manipulate her into giving
up her rights. I'm realizing that I don't know enough about the
difference between what lawyers do and what mediators do to guide her.
Can someone explain this all to me?
Articles
WHAT WOULD YOU DO?
Dec 31, 1969 04:00 PM
BETSY'S ANSWER: I forwarded this question to a mediator for whom I have great respect. I asked him to elaborate on the different approaches available. Here's his answer: (Dan Simon, MA, J.D., Mediator)
When I practiced litigation law, I tried to help my clients feel understood and supported. They were usually dealing with challenging conflicts that had them feeling threatened and angry. I worked to ease their fears and provide an empathic ear for their outrage. I also helped them sort out the various costs, benefits, risks, and potentials of all the courses of action that they suggested and that I could think of. Finally, with my guidance, we would take the course of action that seemed most likely to meet my clients' needs. But I observed that, despite my best efforts, my clients often felt either that the result was unfair, the cost of the result was unfair, or both. And from my clients' perspective, the fact remained that they had been wronged and/or wrongly accused by the other side.
Although I had done my job as a litigator, I often wondered whether there was a way to intervene earlier, to help people avoid getting into ugly conflicts in the first place. That is, rather than going down the tedious road of trying to prove that a contract was not valid, or that the other side had missed some procedural deadline, maybe people could figure out how to work with rather than against each other. It appeared to me that the origins of these disputes were about emotions and communication. Wanting to help people on a deeper, more interesting level, I quit my law firm job and entered an M.A. program in Counseling Psychology. As I left the law firm, a colleague suggested that I look into divorce mediation as a career, because that area of the law is so full of the emotional issues that intrigued me.
As a beginning divorce mediator, I believed my role was to guide couples toward settlement of their differences about parenting, child support, alimony, and property division. I hoped that by reaching legal settlement, they would be spared the emotional and financial cost of litigating. That approach to mediation has been called the "problem-solving," "legalistic," or "facilitative" approach.
While doing this type of mediation, I occasionally saw clients do something that, up till then, I had had no way of predicting. Sometimes, one party would offer up heartfelt words of appreciation or apology to their spouse. These were often poignant moments that led to the parties quickly sorting out their differences and feeling good about it. After a few of these experiences, I became clear that I wanted to do what I could to maximize the likelihood of those moments happening for my clients.
After finishing my degree in Counseling Psychology and after spending more time providing mediation to divorcing couples, my perspective was much different than it had been in my lawyering days. I no longer saw myself as "expert" or "problem-solver." I saw that the uniqueness of each situation prevented me from having any idea what the right solution was. Factors such as each spouse's values, the personalities of their children, the relationship between the spouses, their desires about the nature of their post-divorce relationship, the income and potential income of each spouse, their feelings about their marriage, their sense of urgency to end the marriage, their feelings about different pieces of property and different debts, made it clear to me that no one but the spouses themselves could know what the answers were.
The help that these couples need is support as they sort out all of these issues. If they need help, it is often because of the difficulty people have thinking clearly and communicating with each other when they're in conflict. I had noticed from the beginning that my clients seemed either to behave aggressively or avoidantly in these challenging conversations. Their capacity to care for themselves and to listen to each other seemed greatly, though temporarily, diminished. As a transformative mediator, my role is to help them rediscover a sense of strength, which also seems to increase their potential for compassion. Throughout that transition from crisis to calm, the parties, themselves, are in the best position to know what they need. When they experience making those decisions for themselves in a supportive atmosphere, most often they re-connect with their own humanity and their spouse's.
For a divorce, my mediation process consists of two or three two-hour conversations. In between the conversations, clients often do homework that includes soul-searching and information gathering. The soul-searching includes reflecting on their most important needs and how they want to go about getting those needs met. The practical information that people usually gather includes estimates of the value of their house, account balances in banks, brokerages, and 401(k)'s, and information about new daycare providers and schools. When we meet, I help them sort it all out and figure out their plans for the future. I charge them by the hour for the time spent in the mediation sessions. They share my fees, which rarely exceed $700 per person. Finally, we discuss how they will have the divorce legalized; they choose to finalize the paperwork on their own or with minimal help of one or two lawyers.
As for your client's concerns that her husband is trying to manipulate her into giving up her rights, my job as a transformative mediator would be to attend very closely to those concerns and support your client in doing whatever she felt she needed to feel better about those issues, if possible. Options for her include having the opportunity to ask her husband just what he's up to, and having me there to help translate. I would also want her to feel free to consult anyone whom she trusts to help her take care of herself, including you, a lawyer, or anyone. My hope is that she feels fully supported as she sorts out this often frightening and confusing transition.
(Dan Simon directs the Jewish Family and Children's Service Divorce Mediation Program and mediates divorces through his own practice, Twin Cities Mediation. He also helps with parenting disputes and family business conflicts. He received his law degree, cum laude, from the University of Minnesota School of Law, his M.A. in Counseling Psychology from the University of Minnesota, and his B.A., with honors, from the University of California at Berkeley. In addition to mediating, Dan teaches conflict resolution and mediation).
from June 2001 Minnesota Association
by Betsy Sansby, MS, LMFT
When I practiced litigation law, I tried to help my clients feel understood and supported. They were usually dealing with challenging conflicts that had them feeling threatened and angry. I worked to ease their fears and provide an empathic ear for their outrage. I also helped them sort out the various costs, benefits, risks, and potentials of all the courses of action that they suggested and that I could think of. Finally, with my guidance, we would take the course of action that seemed most likely to meet my clients' needs. But I observed that, despite my best efforts, my clients often felt either that the result was unfair, the cost of the result was unfair, or both. And from my clients' perspective, the fact remained that they had been wronged and/or wrongly accused by the other side.
Although I had done my job as a litigator, I often wondered whether there was a way to intervene earlier, to help people avoid getting into ugly conflicts in the first place. That is, rather than going down the tedious road of trying to prove that a contract was not valid, or that the other side had missed some procedural deadline, maybe people could figure out how to work with rather than against each other. It appeared to me that the origins of these disputes were about emotions and communication. Wanting to help people on a deeper, more interesting level, I quit my law firm job and entered an M.A. program in Counseling Psychology. As I left the law firm, a colleague suggested that I look into divorce mediation as a career, because that area of the law is so full of the emotional issues that intrigued me.
As a beginning divorce mediator, I believed my role was to guide couples toward settlement of their differences about parenting, child support, alimony, and property division. I hoped that by reaching legal settlement, they would be spared the emotional and financial cost of litigating. That approach to mediation has been called the "problem-solving," "legalistic," or "facilitative" approach.
While doing this type of mediation, I occasionally saw clients do something that, up till then, I had had no way of predicting. Sometimes, one party would offer up heartfelt words of appreciation or apology to their spouse. These were often poignant moments that led to the parties quickly sorting out their differences and feeling good about it. After a few of these experiences, I became clear that I wanted to do what I could to maximize the likelihood of those moments happening for my clients.
After finishing my degree in Counseling Psychology and after spending more time providing mediation to divorcing couples, my perspective was much different than it had been in my lawyering days. I no longer saw myself as "expert" or "problem-solver." I saw that the uniqueness of each situation prevented me from having any idea what the right solution was. Factors such as each spouse's values, the personalities of their children, the relationship between the spouses, their desires about the nature of their post-divorce relationship, the income and potential income of each spouse, their feelings about their marriage, their sense of urgency to end the marriage, their feelings about different pieces of property and different debts, made it clear to me that no one but the spouses themselves could know what the answers were.
The help that these couples need is support as they sort out all of these issues. If they need help, it is often because of the difficulty people have thinking clearly and communicating with each other when they're in conflict. I had noticed from the beginning that my clients seemed either to behave aggressively or avoidantly in these challenging conversations. Their capacity to care for themselves and to listen to each other seemed greatly, though temporarily, diminished. As a transformative mediator, my role is to help them rediscover a sense of strength, which also seems to increase their potential for compassion. Throughout that transition from crisis to calm, the parties, themselves, are in the best position to know what they need. When they experience making those decisions for themselves in a supportive atmosphere, most often they re-connect with their own humanity and their spouse's.
For a divorce, my mediation process consists of two or three two-hour conversations. In between the conversations, clients often do homework that includes soul-searching and information gathering. The soul-searching includes reflecting on their most important needs and how they want to go about getting those needs met. The practical information that people usually gather includes estimates of the value of their house, account balances in banks, brokerages, and 401(k)'s, and information about new daycare providers and schools. When we meet, I help them sort it all out and figure out their plans for the future. I charge them by the hour for the time spent in the mediation sessions. They share my fees, which rarely exceed $700 per person. Finally, we discuss how they will have the divorce legalized; they choose to finalize the paperwork on their own or with minimal help of one or two lawyers.
As for your client's concerns that her husband is trying to manipulate her into giving up her rights, my job as a transformative mediator would be to attend very closely to those concerns and support your client in doing whatever she felt she needed to feel better about those issues, if possible. Options for her include having the opportunity to ask her husband just what he's up to, and having me there to help translate. I would also want her to feel free to consult anyone whom she trusts to help her take care of herself, including you, a lawyer, or anyone. My hope is that she feels fully supported as she sorts out this often frightening and confusing transition.
(Dan Simon directs the Jewish Family and Children's Service Divorce Mediation Program and mediates divorces through his own practice, Twin Cities Mediation. He also helps with parenting disputes and family business conflicts. He received his law degree, cum laude, from the University of Minnesota School of Law, his M.A. in Counseling Psychology from the University of Minnesota, and his B.A., with honors, from the University of California at Berkeley. In addition to mediating, Dan teaches conflict resolution and mediation).
from June 2001 Minnesota Association
by Betsy Sansby, MS, LMFT
Last updated: Nov 01, 2006 12:01 AM