Kane Law & Divorce Mediation Services - Seattle/Bellevue/Issaquah/Redmond

For divorcing couples considering mediation, it is important to understand that there are two very different kinds of mediation available to settle “out of court.” Depending on whether they choose early stage facilitative mediation as opposed to “eve of trial” evaluative mediation,  their experiences and degree of emotional satisfaction are likely to be very different. 

For most divorcing couples, their introduction to a mediator comes toward the end of the lawsuit when a judge or court rule orders mediation in an attempt to settle the divorce and clear the trial docket. Typically the couple’s lawyers pick the mediator, sometimes a retired judge or court commissioner. The mediator engages in “shuttle diplomacy” moving between two lawyers and their clients negotiating in separate rooms. The mediator typically practices what we call “evaluative mediation,” which means he/she feels free to evaluate and communicate the merits and weaknesses of “legal positions” taken by “each side.”

By giving his/her opinion as to what a judge might do, the mediator gets involved in the content or “what” of the negotiations. The imminent trial date before an unpredictable judge provides a powerful incentive to settle the case that very day. That’s what usually happens. Very few divorce cases go to trial.

The downside to late stage evaluative mediation is that it does not repair the damage to the couple’s relationship aggravated by the psychic and financial costs of litigation. These are resolutions based on one spouse’s ability to defeat the other spouse through reference to the law. These outcomes usually feel “win-lose” to people experiencing this kind of mediation. The pressure of settling on the eve of trial only adds to the feeling of loss and dissatisfaction.

That’s why I practice and support facilitative mediation after the decision to separate or divorce has been made, as an alternative to litigation with all the motions, hearings, depositions and briefs. Facilitative mediation focuses on the couple’s respective interests and needs. Although I sometimes am asked to mediate these “courthouse steps” divorce cases, most of my mediation practice is “early stage-facilitative.”

In facilitative mediation, the mediator owns the process but the parties own the content. The process can be defined as the ways the spouses and the mediator interact in order to realize each party’s high-end goals or outcomes. Process includes the sequence of the mediation as well as the interventions and techniques employed. A mediator who reframes an issue or speaks back what he/she has heard or sends the parties to “legal coaches” to talk about what a judge might do when faced with a particular set of facts is dealing with process.

In my practice, for example, I see my role as (1) guiding the clients through the divorce issues relevant to their particular family and financial circumstances, (2) identifying their basic interests and needs in order to facilitate their agreement on those issues, and (3) preparing a memorandum reflecting the spirit and substance of their agreement at the conclusion of mediation.

There are other basic differences in early stage facilitative mediation as I experience it. Although lawyers are often in the background, advising each spouse on legal questions, facilitative mediations are typically conducted without lawyers present. Spouses are in the same room, sitting side by side as they discuss and decide the details of their parenting plan and property settlement.

Facilitative mediators don’t evaluate their clients’ respective positions. Far from it, they ask their clients to focus on their key interests and refrain from taking positions. The goal is a fair and durable agreement—one that each person can look back on 2-3 years down the road and feel good about. Not in the sense that it was a “home run”; rather, that there was a fundamental fairness about the process and result that allows these former spouses to get on with their lives.

From time to time, particularly in the spring, I get inquiries from couples who want my help as a mediator in negotiating a prenuptial agreement. Typically, the wedding date has been set several months down the road and either the bride or groom want an agreement to protect assets brought into the marriage from eventual distribution to his or her partner should there be a divorce down the road. In a community property state like Washington, this is a legitimate concern if the bride or groom are bringing significant property or inheritances into the marriage and want to prevent commingling of separate and community assets.

At the outset, I congratulate couples for involving a mediator in discussing a very sensitive subject at a very sensitive time. Discussing possible failure of a marriage during an engagement defines a difficult conversation, even with the help of a skilled mediator.

From the standpoint of a family law mediator’s goal of a durable agreement that will stand the test of time, the issues are challenging. The draft agreement may go well beyond property brought into the marriage, stipulating that most, if not all of the earnings during marriage, will also be deemed separate property not subject to division between the spouses should their marriage fail. Further, the power balance so important in effective mediation is difficult to measure with so much emotion involved. The couple is very much in love, trusting each other to be fair even though the proposed agreement may be very one-sided.

I feel that for these agreements to fulfill their promise, they must be fair to all concerned. Attempts to restrict the number of months or years of spousal maintenance depending on the number of years the marriage lasts don’t work very well if the disadvantaged spouse is destitute after a long marriage.