Jan 31 2008
The Mediator as Case Manager–Improving the Collaborative Process
Most divorcing couples who don’t want to go to court or “do it themselves,” think of their choice as between mediation or collaborative law. Mediation works for couples who can negotiate on their own behalf with the help of a skilled mediator. The collaborative process involves a team of professionals who support the couple in negotiating a fair settlement. But sometimes the couple and their team of professionals are unable to move forward because there is no case manager and the couple cannot agree on a timetable or agenda. This scenario crys out for the skills of a mediator—a hybrid process whose time has come.
As a divorce mediator, one of my most important roles is to manage the mediation. At the close of every mediation session (usually 2 hours in length), we schedule a next session and agree to homework to be done by husband and wife between sessions. For example, there might be a business/house valuation to complete or a child specialist to visit for assistance in developing a parenting plan.
My mediation clients and I lead busy lives and we accommodate everyone’s scheduling needs with this caveat. No one is allowed to delay the mediation process without a good reason. In most cases, spouses conclude an overall agreement on the parenting plan, property settlement, and spousal maintenance in 4-8 months. This typically includes a detailed Memorandum of Understanding reciting all of the agreements of the wife and husband.
Contrast this with the typical collaborative law divorce where the spouses are supported by a team of lawyers, financial and mental health specialists, and other professionals on an “as needed” basis. Too often, the process gets bogged down because no one is able to function as the case manager. If the husband or wife wants to delay the process for whatever reason, the lawyers have little power to move things along. The squeaky wheel gets all the grease as the saying goes. But what about William Gladstone’s famous quote, “Justice delayed is justice denied.”?
In the litigation world, the judge functions as the case manager. There are deadlines for pretrial discovery, motions, and trial. I believe that the mediator could and should substitute for the judge in the role of a case manager in the collaborative divorce process. It is extremely valuable for the clients, lawyers, and other professional team members to know that there is a neutral administrator available if and when that becomes necessary.
This doesn’t mean that the mediator gets involved in negotiations between the lawyers and is present at all the 4-way meetings. Nor are the team professionals and clients answerable to the mediator as they would be to a judge. What it does mean, however, is that the mediator is introduced as part of the collaborative professional team with the stated role of moving the collaborative case forward if it gets bogged down. He or she is accountable to the parties for overall administration. Spouses know from the beginning that the mediator will be called in as necessary—in itself a powerful incentive to get the job done.