Why Family Law Mediators Should Check Their Assumptions at the Door

There is an interesting discussion going on over in the ADR, Conflict Resolution and Mediation Exchange group on LinkedIn. A divorce mediator asked the group how they would handle an email received from a couple's teenage daughter, in which the daughter makes disparaging remarks about the father and asks the mediator to side with the mother. The question sparked a range of responses, including (1) discussing the email with the couple; (2) keeping quiet about the email but trying to get more information from the couple about the underlying issues; and (3) rejecting the possibility of a mediated outcome, because in one contributor's words, "If there are parental alienation issues relative to a divorce, mediation becomes absurd."

How much do divorce mediators actually know?

Based on the limited facts available, parental alienation is certainly one possibility. However, experienced family law practitioners know that the superficial facts often mask a far more complicated underlying situation. Assumptions can be very misleading. Here, the daughter might be entirely self-motivated. Or, she might have overheard the mother venting about the divorce to a friend, and decided to take matters into her own hands. Even if the mother is engaging in alienating behavior, she might not be doing so intentionally – people in stressful family situations do not always act rationally, despite their best intentions.

In short, there is a lot more we need to know about the situation, and even if Occam's razor proves correct, that does not mean the case is hopelessly unsuited for mediation.

How much of what divorce mediators know is accurate?

Even if we think we "know" something, circumstances change, and we need to make sure we are constantly open to reexamining the facts. I recently co-mediated a session where, based on the information initially provided to me, it appeared that neither spouse was interested in formal divorce proceedings. When we met with the couple, it would have been easy to treat that information as a given and attempt to guide the process accordingly. However, by letting the spouses speak for themselves, it became immediately apparent that both of them were interested in getting divorced expeditiously! Maybe they had changed their minds since the intake, or maybe the person doing the intake had misunderstood. Whatever the reason, it was very important in that case not to let ourselves be guided by assumptions about the clients' goals.

Beware first impressions!

Another example, involving a matter where I provided individual representation to a client getting a prenuptial agreement. In a somewhat uncommon turn of events, it was the client's spouse-to-be who first called me, the spouse-to-be who emailed me with details, and the spouse-to-be who scheduled the initial meeting. I did not have any contact with the client until that first in-person meeting! It turned out that the spouse-to-be was also the one bringing significantly more assets into the marriage. Obvious conclusion: the spouse-to-be was driving the process and insisting on a prenuptial agreement.

I couldn't have been more wrong.

In fact, I soon learned that my client was the one who first raised the idea of a prenuptial agreement, based on some very negative childhood divorce experiences. I had walked into that first meeting absolutely certain that I understood the situation, only to discover a different situation entirely. My first impression, as much as it was grounded in some very compelling facts, was completely wrong.

Let the clients be the guides.

Assumptions are easy to make, but the damage from following them can be hard to correct. Family law mediators must keep an open mind, facilitate discussion with open-ended questions, and let the clients be our guides, not vice-versa. Let them tell their own stories, and they will be that much more likely to reach their own solutions. Try to tell their stories for them, and our assumptions will be our downfall.