My friend Valerie says that there is a mediator out there for everyone. With so many mediators to choose from and so many different approaches, how can you find the right mediator for you? Mediation is a confidential process, so it’s unlikely that you’ll be able to see a particular mediator in action before hiring. You can ask around or look for reviews on the internet, but that won’t necessarily lead you to the right person for your conflict. Even the mediator who helped your best friend won’t automatically be the best one for you.
Whatever qualities you feel are important in a mediator, probably the best place to start is with the professional association of mediators in your area. In Toronto, that would be the Alternative Dispute Resolution Institute of Ontario. A mediator who belongs to such an organization has made a commitment to the profession and to professional development. Depending on the rules of the organization, he or she will have been educated about the causes and dynamics of conflict, and about different approaches to conflict resolution. If you are looking for a mediator to help you facilitate a separation agreement or divorce, you should look for someone who has had training in family mediation. Such training usually includes an over-view of the relevant family laws. Of course, a mediator can inform you about the law but ordinarily will not (and should not) offer legal advice.
Very broadly speaking, the main difference among mediators is whether they take an evaluative or a more facilitative approach. Mediators who are strongly evaluative will not hesitate to tell you their views on your dispute and what they think an appropriate resolution would be. Mediators who are more towards the facilitative end of the spectrum may offer suggestions to help you solve specific problems, but their focus will be on helping the parties in the dispute arrive at their own resolutions. The thinking behind this approach is that the parties involved are likely the most knowledgeable about the details of their own situation and so the best equipped to come up with durable solutions. There is also a good deal of evidence that people are more likely to respect agreements that they themselves have had a hand in crafting, rather than settlements that have been foisted upon them.
It is perfectly acceptable (and probably a good idea) before you hire a mediator to ask about their training and about their style and approach. Whatever the nature of your conflict, it is crucial that you feel comfortable with the mediator and can develop a sense of trust. Even over the phone, you should have the feeling that the mediator is really listening to you, not just waiting for you to stop talking. It is very important that a mediator give the impression of being impartial about your conflict from the beginning. He or she will listen sympathetically but will not readily take your side no matter how compellingly you present it. Don’t be disappointed about this. While it is understandable that you would want an ally in an emotionally charged situation, do not try to put a mediator into that role. Mediators are able to do a better job in the end if all parties respect them as neutral in the dispute.
The Alternative Dispute Resolution Institute of Ontario currently has about 850 members. Whether your conflict involves a business, family members, co-workers, or the whole neighbourhood, one of them will be the right person to help you.
Friday, January 28, 2011
Tuesday, January 18, 2011
Mandatory Marriage and Divorce Counseling?
Divorce rates in the state of Wyoming are among the highest in the U.S., and legislators there have come up with a strategy they hope will change that. If a proposed bill is passed, couples who plan to marry or divorce will have to attend three hours of counseling at their own expense. Couples who refuse counseling will have to wait a “cooling off” period of one year before being granted a license. Judges will have the right to waive the divorce counseling requirement in situations of domestic violence. The Catholic Church and some other religious institutions already insist that couples who plan to marry in the church receive premarital counseling. Yet while couples who didn’t want to go through such counseling have always had the possibility of opting for a civil ceremony, a marriage license is a requirement for any kind of ceremony. Is Wyoming’s proposed legislation an inspired response to a difficult social problem, or an unacceptable intrusion by the state into the private lives of its citizens?
Critics of the bill have been quick to argue that marriage is a personal decision, between two free individuals, and that “big government” has no place butting in. But this criticism won’t fly. Whether we like it or not, the state is already firmly involved in the institution of marriage. Marriage may be a personal matter, but it isn’t a private one. In choosing to marry (rather than co-habitate) individuals ask the state to recognize their union. Furthermore, many costs of a high divorce rate – in adult and child poverty, strain on the legal system, and higher bankruptcy rates – are borne by the state. The sponsor of the bill, Representative Ed Buchanan (Republican), says that it should help people understand the consequences of life-changing decisions. If internet family law forums are a valid indicator, many people contemplating marriage or divorce have very little understanding of their legal rights and obligations. Helping them to become more aware can only be a good thing.
Right now, there are very low barriers to marriage in Wyoming and its neighbouring states. Obtaining a marriage license will set you back $25 in Wyoming, $30 in Colorado, and a measly $15 in Nebraska. (For comparison, in Ontario a marriage license costs $130.) Making marriage and divorce more difficult might encourage some people to consider their decisions more thoughtfully, and this in turn might affect the divorce rate. Yet despite the good intentions of those who support the bill, I can see a few problems. First, there is nothing to stop couples in Wyoming from crossing the border to get married in another state. Second, I don’t know how strictly the counseling profession is regulated in Wyoming, and it isn’t clear what requirements marriage counselors would have to fulfill and what kind of expertise they would be expected to have. For example, would counseling by members of the clergy be acceptable? The issue of counselors’ training and expertise is all the more pressing when you consider that the issue of whether marriage counseling works at all is controversial. (Click here for an article from the New York Times Magazine that surveys some of the evidence for and against the effectiveness of couples counseling.)
If the bill passes, I hope that someone will do follow-up research. How many couples who receive mandatory counseling will revisit their decisions to either marry or divorce? Will the change have any effect on Wyoming’s divorce or marriage rate? Perhaps the idea will catch on, and mandatory counseling requirement for civil marriage will one day come to be seen as unremarkable as the requirement to undergo a blood test once was.
Critics of the bill have been quick to argue that marriage is a personal decision, between two free individuals, and that “big government” has no place butting in. But this criticism won’t fly. Whether we like it or not, the state is already firmly involved in the institution of marriage. Marriage may be a personal matter, but it isn’t a private one. In choosing to marry (rather than co-habitate) individuals ask the state to recognize their union. Furthermore, many costs of a high divorce rate – in adult and child poverty, strain on the legal system, and higher bankruptcy rates – are borne by the state. The sponsor of the bill, Representative Ed Buchanan (Republican), says that it should help people understand the consequences of life-changing decisions. If internet family law forums are a valid indicator, many people contemplating marriage or divorce have very little understanding of their legal rights and obligations. Helping them to become more aware can only be a good thing.
Right now, there are very low barriers to marriage in Wyoming and its neighbouring states. Obtaining a marriage license will set you back $25 in Wyoming, $30 in Colorado, and a measly $15 in Nebraska. (For comparison, in Ontario a marriage license costs $130.) Making marriage and divorce more difficult might encourage some people to consider their decisions more thoughtfully, and this in turn might affect the divorce rate. Yet despite the good intentions of those who support the bill, I can see a few problems. First, there is nothing to stop couples in Wyoming from crossing the border to get married in another state. Second, I don’t know how strictly the counseling profession is regulated in Wyoming, and it isn’t clear what requirements marriage counselors would have to fulfill and what kind of expertise they would be expected to have. For example, would counseling by members of the clergy be acceptable? The issue of counselors’ training and expertise is all the more pressing when you consider that the issue of whether marriage counseling works at all is controversial. (Click here for an article from the New York Times Magazine that surveys some of the evidence for and against the effectiveness of couples counseling.)
If the bill passes, I hope that someone will do follow-up research. How many couples who receive mandatory counseling will revisit their decisions to either marry or divorce? Will the change have any effect on Wyoming’s divorce or marriage rate? Perhaps the idea will catch on, and mandatory counseling requirement for civil marriage will one day come to be seen as unremarkable as the requirement to undergo a blood test once was.
Wednesday, January 12, 2011
When to hire a mediator (rather than do nothing)?
People often ask me in what circumstances they would need a mediator. Mediators are experts in conflict resolution, and mediators work in many different settings. There are mediators on the international stage, mediators in family courts, schools, workplaces, prisons, and out on the streets. But when should you hire a mediator rather than doing nothing? I think that there are two basic factors:
It isn’t only divorced couples who need to make decisions together. Mediators also work with couples who plan to marry, to help them frankly discuss and then plan for the financial and “business” aspects of their relationship. They help married couples who plan to stay together, but need assistance to communicate effectively. And a whole range of potential conflicts can arise among adult siblings. When an elderly parent can no longer live independently, who will decide the best course of action? Who will take away grandpa’s car keys if his driving is putting others at risk? What is to be done if the family farm or business is no longer viable in its present form?
What all of these different situations share is that a decision needs to be made, and there is something of value at stake. The question of what counts as “something of value” is in the end a personal matter. I’ve seen families nearly torn apart over the issue of who will host Christmas dinner! While this isn’t something that I personally would seek help with, I know others for whom a couple of hours with a mediator to resolve this issue would be a sound investment in future family relations and personal happiness.
In general the cost of mediating a particular conflict can be weighed against the cost of doing nothing. Sometimes, if we’re fortunate, the cost of doing nothing is low. But the costs of inaction and indecision are sometimes very high. Failing to act can allow conflict to fester and can end up costing as much or more than taking action. And it has to be remembered that the costs of many conflicts are both financial and emotional – with the emotional costs being much harder to calculate.
1. A decision needs to be made.Let me explain: We all have conflicts with others. Many of these, thankfully, have little effect on our daily lives. We can avoid the neighbour whose early morning leaf-blower is a weekly annoyance. We can change the subject when our brother-in-law brings up politics or the economy. We can agree to disagree with the other parents in the playground when the topic of our children’s “screen time” comes up. But sometimes we have to co-ordinate and work together with others and conflict becomes unavoidable. And sometimes, despite conflict and differences of opinion, decisions have to be made. For example, will the children of divorced parents spend the weekends with their father or mother? Will they continue to attend the neighbourhood school or transfer to a private school? Where will they spend the holidays? Who will be in charge of their religious instruction?
2. Something of value is at stake.
It isn’t only divorced couples who need to make decisions together. Mediators also work with couples who plan to marry, to help them frankly discuss and then plan for the financial and “business” aspects of their relationship. They help married couples who plan to stay together, but need assistance to communicate effectively. And a whole range of potential conflicts can arise among adult siblings. When an elderly parent can no longer live independently, who will decide the best course of action? Who will take away grandpa’s car keys if his driving is putting others at risk? What is to be done if the family farm or business is no longer viable in its present form?
What all of these different situations share is that a decision needs to be made, and there is something of value at stake. The question of what counts as “something of value” is in the end a personal matter. I’ve seen families nearly torn apart over the issue of who will host Christmas dinner! While this isn’t something that I personally would seek help with, I know others for whom a couple of hours with a mediator to resolve this issue would be a sound investment in future family relations and personal happiness.
In general the cost of mediating a particular conflict can be weighed against the cost of doing nothing. Sometimes, if we’re fortunate, the cost of doing nothing is low. But the costs of inaction and indecision are sometimes very high. Failing to act can allow conflict to fester and can end up costing as much or more than taking action. And it has to be remembered that the costs of many conflicts are both financial and emotional – with the emotional costs being much harder to calculate.
Wednesday, January 5, 2011
Mediator – One of the Best Careers for 2011?
“Mediator” made the list of U.S. News & World Report’s 50 best careers for 2011. They predict that in the U.S. – one of the most litigious countries in the world – employment in alternative dispute resolution will increase by 22% between 2008 and 2018. Jurisdictions all over the world now require disputants to try mediation before bringing their disputes into the courtroom. I think that this reflects a greater awareness of alternative approaches to conflict, and a growing acceptance of the view that the courtroom may not be the best place for every kind of dispute.
Mediation is being used in an expanding variety of circumstances. In the wake of the housing crisis in the U.S. many states have suggested or required mediation between banks and homeowners before allowing foreclosure. (Interestingly, researchers have found that mandatory mediation has a higher rate of success than voluntary mediation. See my earlier posting, “Is Mandatory Mediation an Oxymoron?”) A&E has been airing “The Peacemaker,” a series on Malik Spellman, a former gang member who now works to mediate violent disputes between gangs in L.A. And mediation continues to be used as a way of addressing conflicts over environmental resources. Bill Ritter, the governor of Colorado, recently ordered the creation of a “River Access Mediation Commission” to resolve disputes between boaters and property owners.
But increasing opportunity is not the only reason to be excited about a career in mediation. Being a mediator can be rewarding in itself. Mediators help individuals in difficult situations who often can’t see a way out on their own. For example, mediated parenting plans can help defuse the often wretched emotions involved in marital break ups. A more startling example is that tribal mediators in Yemen were recently able to resolve a nine year family conflict over land. Three people had died and twenty-one were injured in the cycle of revenge violence. While I don’t know of any such dramatic cases in Canada, mediators everywhere help others to resolve their conflicts, reduce the stress in their lives, and return to meaningful activity. To do this as one’s job is a privilege.
Happy new year.
Mediation is being used in an expanding variety of circumstances. In the wake of the housing crisis in the U.S. many states have suggested or required mediation between banks and homeowners before allowing foreclosure. (Interestingly, researchers have found that mandatory mediation has a higher rate of success than voluntary mediation. See my earlier posting, “Is Mandatory Mediation an Oxymoron?”) A&E has been airing “The Peacemaker,” a series on Malik Spellman, a former gang member who now works to mediate violent disputes between gangs in L.A. And mediation continues to be used as a way of addressing conflicts over environmental resources. Bill Ritter, the governor of Colorado, recently ordered the creation of a “River Access Mediation Commission” to resolve disputes between boaters and property owners.
But increasing opportunity is not the only reason to be excited about a career in mediation. Being a mediator can be rewarding in itself. Mediators help individuals in difficult situations who often can’t see a way out on their own. For example, mediated parenting plans can help defuse the often wretched emotions involved in marital break ups. A more startling example is that tribal mediators in Yemen were recently able to resolve a nine year family conflict over land. Three people had died and twenty-one were injured in the cycle of revenge violence. While I don’t know of any such dramatic cases in Canada, mediators everywhere help others to resolve their conflicts, reduce the stress in their lives, and return to meaningful activity. To do this as one’s job is a privilege.
Happy new year.
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