Facilitative Divorce Mediation

There are several different, but related, methods of divorce mediation. In another post, I described Proposal-Focused Divorce Mediation, in which the mediator encourages parties to offer and discuss proposals that address conflicts and issues related to the future, rather than talking about matters from the past. This method was developed especially for high conflict couples – that is, couples that cannot communicate without emotional outbursts that prevent open communication. Proposal-Focused Divorce Mediation reduces time airing grievances and feelings while increasing time spent on what can be done in the future to actually solve past and current issues. As with other forms of divorce mediation, each party is encouraged to seek legal counsel to make sure that all aspects of a legal divorce have been addressed.

Facilitative Divorce Mediation is designed, on the other hand, to understand the underlying needs or interests of the parties. As described by Leonard Riskin, in a 1996 article published in the Harvard Negotiation Law Review:

“… the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator and, perhaps, better than their lawyers. Accordingly, the parties can create better solutions than any the mediator might create. Thus, the facilitative mediator assumes that his principal mission is to clarify and to enhance communication between the parties in order to help them decide what to do.” 

Leonard L Riskin, “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed” (1996) 1:7 Harv. Neg. L.R. 7 at 13.

Facilitative mediation (negotiation) was also described in a popular book as a process in which:

1. The parties are supported in exploring underlying individual interests – the needs that motivate their points of view and areas of conflict;

2. The parties explore possible shared interests and create various solutions that might solve their problems;

3. The parties must communicate their interests, which the mediator (with no authority to impose a solution) facilitates, in order to achieve a mutually acceptable resolution of their dispute.

R. Fisher, W. Ury, B. Patton. (1991). Getting to Yes: Negotiating Agreement Without Giving In. New York: Penguin Books.

Facilitative mediation is described somewhat differently by Lela P. Love of the Mediation Clinic, Cardozo Law School in New York City, who writes:

“Evaluating, assessing, and deciding for others is radically different than helping others evaluate, assess, and decide for themselves. Judges, arbitrators, neutral experts, and advisors are evaluators. Their role is to make decisions and give opinions…In contrast, the role of mediators is to assist disputing parties in making their own decisions and evaluating their own situations.”

In any case, the mediator asks questions, helps spouses gather relevant information, and is non-judgmental about parties’ points of view. He or she assists the parties in exploring and evaluating the proposals they present. Facilitative mediators do not recommend options or offer their own advice or opinions, especially about what a court would do. The mediator’s mission is to promote mutual decision-making based on information and understanding that both share. While meetings can be held individually with each party, which is called caucusing, that both parties are present to hear each other’s points of view is preferable. Again, as described by the State of Maryland, “mediation is voluntary, confidential, and lets you and the other person decide what works best for both of you.” Moreover, the mediation process cannot force you to agree.

Anchor Therefore, it seems to me that a good mediator needs to meet the parties where they are in their interpersonal dynamics – whether high conflict or smoothly collaborative. To do that, she needs to be an acute observer of human behavior, an attentive listener and a calming influence in the presence of emotion and conflict. She also needs to be flexible, knowledgeable and skilled in interpersonal communication, so she can adapt the process to the unique parties’ needs.

I believe I meet those criteria. Let me help you!