Help me understand, I said to the attorney representing mom, what is the basis for letting her call the shots? There is none he said, I’ve told my client that we can’t win in court. Even so, mom steadfastly said the father was just not a good dad. She refused to be in the same room as him.
In father’s room, his attorney was outraged at the response. This is not helpful he said. We do actually want to settle this. They made a kind offer, not backing off equal parenting time, but offering to set in stone some agreements on a variety of prickly contentious issues. These were deals that mom could not expect to get in court.
Back in mom’s room I was met with floods of tears. Calm returned for a while. We talked through the agreements father was willing to make to get this settled. There was a commitment to a school district, some pick-up and drop-off driving, and even generosity with expenses. Mom began to show some inkling that she was empowered here. She could get things in mediation that were not available elsewhere. What she utterly lacked was any empathy or recognition of the world from father’s perspective, or even her child’s.
An expert had written a long report on the family. Mom disagreed with the Ph.D. lady who had recommended equal parenting time. The expert commended them both as good parents. I thought mom’s position was doomed if she went anywhere near a courtroom, but I did not say that just yet. Her attorney had been saying that to no avail. Father and his attorney were just not feeling any need to budge, except to get this over with.
“I know I am going to lose” said the mother, “but if I go to court there is just a chance I might get what I want – isn’t there?” She left the room to take a cigarette break. When she came back I reminded her of all the deals she had to gain from the mediation, things she would loose after the day was over. There were more tears, and she had to go call her mom. Knowing looks were exchanged between me and her attorney. When she came back, I left the room to give them some quiet time together. I let him finish her off.
I’ll sign she said when they emerged. She looked crushed, as if dragged through a hedge backwards. In the other room they wondered what took her so long. From the case management perspective of the trial courts, this was just another successful settlement. A trial with lengthy expert testimony was vacated; a vindication of court ordered mediation!
My colleagues who espouse a transformative approach to mediation would see this as the very worst that the courts have to offer, not even mediation by their definition. The underlying conflict was still intact, not addressed, and certainly not transformed in any positive direction. To the extent that this type of mediation is typical, I agree that the courts and legal system could do better in many cases.
Most people are engaged in society; they have a consciousness of self and their relationship to others. Transformational mediation draws upon this to not only empower, but also facilitate a shift to a place where the parties recognize each other’s perspectives and interact positively. The promise is that the dispute can be resolved at a deeper level that may also reduce future trips to court.
The reality is that not everyone comes to mediation able to relate like everyone else, and I think the mediation style has to match the participants. This mother was so self absorbed and sure of her world view. It was as if the empathy gene was missing. The lady with the Ph.D. had commented about that too. Adjudication and arbitration can totally disempower, and that was the alternative that eventually, even mother foresaw. She actually did a little better, and certainly gained more control by signing off on things with her own hand.
I have mediated other cases after the courts have delivered a crushing blow to a parent. One that they have never accepted, returning to litigation year after year. Set against that prospect, the result in this case was not a completely bad outcome. Perhaps even a worthwhile one. The key public policy question is how hard mediators should push, especially in the much more typical cases where neither party has an attorney to assist them. How deeply do we expect mediators to understand the dynamic in front of them when a GED is all that is required in terms of formal education?
At best, I think this was a “satisfaction story” of utilitarian misery minimization. Mom was miserable. Each party felt the money that they had paid their lawyers. This would not be the end of it, but perhaps they had bought some time. To the extent that mom had caved because of a legal evaluation of her position, she had been disempowered, but perhaps not as badly as could have happened in a court room. However, she certainly looked oppressed at the end.