July 02, 2018 Substantive Law

Two Perspectives on Family Mediation

By Maud Berg and Chip Rose

Reprinted with permission from Dispute Resolution, Winter 2018, at 23-26. ©2018 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

In the Fall 2017 issue of Dispute Resolution Magazine, writers compared dispute resolution practices in the United States and Europe. Continuing that conversation, we invited two practitioners, Maud Berg from the Netherlands and Chip Rose from California, to share their perspectives on family mediation.

Q. How does national culture affect people’s approach to conflict where you practice?

Maud Berg: In the Dutch culture, it’s common to deliberate and negotiate. There’s even a Dutch word for it: polderen. It means to seek a compromise in order to come to an agreement, particularly within a political context. This is probably so because of our multiparty system of government, where any one party cannot possibly get all the votes and become the ruling party. Two or more parties are always needed to form a ruling coalition. In Dutch politics, there’s always a compromise to be negotiated.

Couples choose to go to a mediator when confronted with divorce because they want to try to maintain or improve their relationship and ensure that they remain good parents. Getting through a divorce is emotionally hard, and most parties are motivated to try to keep things from getting even worse.

Chip Rose: I wish we had greater cultural acceptance of negotiation and compromise in the United States. If there is an American cultural approach to conflict, I would say it is dominated by the adversarial litigation process. However, I have noticed that today, compared to the 1980s and 1990s, when I was growing my practice, more clients now seek a mediated solution before trying to litigate. Mental health professionals tell us that unresolved conflict is the single most damaging thing for children, so I’m pleased to see couples with children seek to mediate their divorce. These parents want to work toward raising their children in healthy, co-parenting arrangements in the years that follow the divorce, and many of them find that a well-structured mediation process offers a positive model for resolving their differences.

 

Q: Where you work, is there any standard training or professional regulation for family mediators?

Maud: In Holland, mediators are encouraged to add specialty training to basic mediation training by following specific modules in which they learn how to deal with the transformation process and help people break through arguments and negative communicative patterns. Although mediators have no legal obligation to get any particular training before they work with clients, in practice all mediators follow standard and specialization training programs. The Mediation Federation in the Netherlands (MfN), whose accreditation committee I serve on, has set up quality standards for general practitioners and family mediators and other specializations and also offers a specialization training of at least 36 hours focusing on skills in the psychological, legal, and financial realms. In family cases, judges refer cases only to qualified family mediators who are listed in the MfN’s mediators’ register. To remain registered, mediators must practice more than 100 hours per year, get continuing education every year, and participate in a peer review about once every five years. Training programs themselves must be accredited by the MfN.

Chip: As someone who self-trained because I could not find training programs when I began this work in 1980, I have always appreciated the fact that the state of California has chosen not to regulate the practice of mediation. The standards of practice have grown out of the profession itself and from organizations such as the Academy of Professional Family Mediators and its progenitor, the Academy of Family Mediators. These organizations established the basic minimum standard for undertaking the practice of mediation as 40 hours of basic training, with ongoing advanced training in high-conflict cases, domestic violence, and other topics. State regulation can have its pluses, but as with regulations from the legal profession and state bar associations, state rules offer no guarantee of quality for the consumer.

In California, many family mediators come from either a legal or therapy background. While training as a lawyer or a therapist does add value, neither of those professions provides the training necessary to become a skilled professional mediator. The traditional training for lawyers, for example, focuses on advocating for one party, so many who come to mediation after legal training find it challenging to learn how to help clients break down the barriers that keep them from resolving their own issues. For many practitioners, understanding the causes of impasse—and developing the skills to help people move past it—can take years.

 

Q: In your jurisdiction, how do people know that mediation is an option for handling their family conflict?

Maud: Mediation was first introduced in family law cases in the Netherlands, and the results were good. The media has covered many mediation cases, and that coverage has also helped spread the word. The law does not require mediation. However, when couples in Holland are considering a divorce, they often first look for a mediator.

Chip: In the United States, by the late 1990s, the judicial system had become aware of mediation as an alternative to litigation and began embracing the idea of mandating mediation in family law cases. It began with what lawyers call “custody” cases (those involving what mental health professionals call “co-parenting” issues), and as the courts saw the benefit to their judicial caseloads, they began to require mediation as a prerequisite to litigation. Not all judicial districts mandate mediation in general, but most send custody issues to mediation first. In some California jurisdictions, most mediators are private providers; in other jurisdictions, the mediators are provided by the court. The acceptance of mediation and its embrace by the courts significantly expanded its availability and public awareness of its benefits.

 

Q: How do parties identify a particular mediator for their dispute?

Maud: In most cases, parties are referred to me by lawyers or former clients. Judges also refer people to mediation, often in cases where emotional issues lie at the root of the case and especially when children are involved. The judge will confer with the parties and ask them if they are prepared to go down the road of mediation. If so, they are given a list of mediators.

Chip: In California, the free market controls the selection and payment of private-practice mediators. In addition, various judicial jurisdictions have panels of volunteer mediators, many of whom are looking to expand their practices and generate business. Since the recession that followed the collapse of the housing market, there has been an explosion of new mediators, as lawyers who relied on litigation responded to the change in consumer demand for legal services.

 

Q: How about cost? Is that an obstacle to parties using mediation?

Maud: The Netherlands government encourages mediation in family cases by allowing eligible parties to pay smaller contributions toward the total cost of mediation as part of legal aid. If people go to separate lawyers, they each have to pay their own contributions, so the overall cost is higher. But even for parties who are not eligible for legal aid, the fees for mediation are lower than they would be in litigation because they are shared.

Chip: By virtue of its design, a mediation process should always result in a fraction of the expense the parties would face if they were represented by individual lawyers working as adversaries. Even in cases where the parties are consulting with their own lawyers, the mediator should be able to help them with information-gathering, analysis, option development, and negotiation more efficiently and for less money than they would encounter in litigation.

 

Q. In your jurisdiction, do parties usually bring a lawyer or another advisor to the mediation sessions?

Maud: I often carry out my mediation sessions with the clients’ advisors at the table. The mediator must remain neutral to both parties and can therefore give no advice, but at this difficult time, people need advice and look for support from experts. Parties want someone to be part of the proceedings and offer guidance. Lots of clients have their own lawyers or accountants whom they consult in between mediation sessions, but if they wish, parties can also bring their own advisors to the mediation sessions. Accountants or lawyers are often present at these talks.

Chip: Sometimes yes, sometimes no. I think legal institutions, including bar associations and the state organizations that govern the practice of law, maintain a kind of organizational conceit that lay clients’ interests are at risk if they do not have access to legal representation. At the same time—and all too frequently—the legal professionals are completely unaware how their own background, training, and litigation experiences affect their clients’ experiences in mediation. As a result, the mediation can become law-oriented rather than client-centered.

 

Q: What techniques do you find help parties most?

Maud: I think one of the most important transitions I can help people with is going from partners to former partners who are amicable parents. I achieve this by talking about their past relationship. I invite both people to tell their story from the moment they met until the breakup: what they experienced as positive moments, what point the breakdown began, when they felt supported by the other person, and when they felt alienated. In highlighting the good times, people often feel and remember a connection. And because I encourage them to speak respectfully with each other about their relationship, they begin to understand each other better.

Chip: The core principle that anchors my process is the concept of safety—that the clients, as participants, with me as mediator, consciously act in ways that make each other feel safe during the process. That means each client refrains from taking unilateral actions that would cause the other to feel threatened. I tell clients that there is nothing wrong with approaching the process from a perspective of self-interest, but it is important to understand that the other side of the coin of self-interest is the concept of mutuality. Mutuality dictates that neither party will maximize her/his self-interest unless the other party does the same—therefore, the key to maximizing one’s self-interest is to work collaboratively with the other party.

 

Q: Do you have any particular techniques to help parties understand each other?

Maud: The way couples communicate is key and is often the reason for the initial breakdown. Parties feel misunderstood and not taken seriously. If they attempt to resolve the issues using this ineffective manner of communication, they will never come to an acceptable agreement. I discuss the mode of communication they use and how they can improve it, and I help the parties during my sessions talk more effectively.

Chip: I think our practices are probably very similar when it comes to communication. Normalizing and acknowledging communication difficulties and creating some boundaries around the content of what people want to say is a critical function of the mediator if constructive communication is going to be incorporated into the process. As mediator, I ask the parties if they will forbear speaking about each other and just describe their own thoughts and feelings about every issue we are discussing. I also ask permission to restate or reframe things they say so that the other person will hear it more clearly. Clients always give me that permission, and this reframing allows me to “translate” a poorly stated feeling into language that does not put off the other party.

 

Q: What are the most common obstacles you see to agreement?

Maud: A divorce mediator must realize and acknowledge the fact that working on a voluntary divorce process is impossible if either party resists. It is vital for the one who is being left to understand that the relationship has ended and that there is no hope of a reconciliation. The more this is communicated with respect, the greater the chance that the one being left will come to terms and accept the separation without resistance.

Chip: I agree completely with Maud. Dealing with the raw emotions of divorce and one (or more) party’s resentment and resistance is very difficult for beginning mediators. This is the type of issue that requires as much training and experience as one can acquire. I would add that most individuals in relationship crisis are more focused on their differences that their similarities. This is in part because they are “micro” obsessed with outcome issues and overlook the “macro” goals that they actually share. When I ask parties whether they can agree that going through the mediation process in a way that helps their children as much as possible is a good goal, I always receive a “yes” answer. And having the parties see each other nod in agreement at the outset of the process sets a subtle but profound positive tone for the rest of the mediation.

 

Q. Where you practice, what’s the status of mediation and mediators?

Maud: The status of mediation in the Netherlands has definitely grown a lot in the last 20 years. Family mediation is used regularly, by divorcing couples’ choice and also by referral from both lawyers and judges. The law has also promoted mediation in an indirect way by obligating divorcing parents to formulate a parenting plan, an official piece in the divorce procedure that needs to contain detailed information about the way parents will handle future decisions for the children concerning choice of school, sports, and other matters. It also must include details about the care for the children: where they will live, when they will see each parent, and how parents will share and organize information about illnesses or problems. If the judge finds the parenting plan insufficient, usually he or she will refer the couple to mediation. And because lawyers know this, they often advise their clients to see a mediator to work on the parenting plan before going to court.

To summarize: mediation in family cases is very well known, very much used, and accepted by divorcing parties, lawyers, and judges as a good way to handle a divorce. Thousands and thousands of cases are going to family mediators in the Netherlands.

Chip: In the United States, mediation is expanding, driven by two factors. The first is financial. Many divorcing couples are rejecting what they see as the astronomical expenses of the traditional court-and lawyer approach to divorce and are instead choosing the much more manageable costs of mediation. The second is the growing public awareness, as seen by the number of legal professionals (in particular) who now advertise on their websites that they have added mediation to their practices. For the first two decades of my practice, I was one of two legal professionals in my county offering mediation services in family law. Now I think it is safe to say that 80 percent of legal professionals have added mediation to their professional services.

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Maud Berg and Chip Rose

Maud Berg, a lawyer with a legal and therapeutic background, has worked as a legal mediator since 2002. In addition to her work as a mediator, she provides training to lawyers, mediators, and judges. She can be reached at mberg@binc.nu or www.binc.nu. Chip Rose is a divorce mediator located in Santa Cruz County. He founded The Mediation Center in Santa Cruz in 1980, is certified as a specialist in family law by the state bar of California Board of Legal Specialization, and is the immediate past President of the Academy of Professional Family Mediators. He can be reached at crose@mediate.com or www.ChipRoseMediation.com.