WHAT IS IT?
Teamwork is not only important for the Winter Olympics but also in divorce. Consider how the popular sport of bobsledding represents a team effort. From a standing start, the crew pushes the sled, then boards while running. At first, the sled is steered by grooves in the ice. After passing through the starting area, however, the pilot must take over this important job. During the race, the sleigh’s speed depends on its weight and design; it also varies according to ice conditions, and the skill of the runners and pilot. After crossing the finish line, the brakeman must stop the sled by pulling the sled’s brake lever. One athlete could not possibly pull off all of these tasks alone.
Similarly, enhanced team mediation can be a winning choice for someone going through divorce. When a team functions well, it is able to traverse even the most difficult issues. According to the enhanced mediation model, each mediation session is led by a neutral family law attorney who acts as a mediator, as well as one or more neutral professionals—a mental health professional and financial professional, for example. The attorney mediator facilitates settlement negotiations after ensuring that clients have sufficient legal information to make decisions about their issues—including property division, spousal and child support, and child custody. The attorney mediator does not provide legal advice or take sides; instead, the mediator is a neutral facilitator and educator who ensures that each client is well informed. Meanwhile, the other neutral professionals guide the process in other ways. For example, the mental health professional guides communication and helps the clients manage their emotions so they can reach agreements that work for everyone involved (e.g. parents and children). The attorney-mediator is not specifically trained in the same way as a financial or mental health expert.
In many cases, it is clear that emotional obstacles will impede resolution of certain issues. Having the right member of the team available to do the job (similar to the bobsled team) is vital. It’s important to note that any mental health professionals involved do not actually provide therapy to either client; that role can be filled by an outside therapist should the clients desire. Instead, the mental health professional acts as a coach who guides communication between the clients. In this way, the mental health professional helps the clients identify short and long-term goals, reframe issues, and focus on solutions. A mental health professional may also provide a voice for any children involved in the divorce.
Likewise, in many divorce cases, financial issues are complex. It may be that only one spouse managed the finances during marriage, however, both clients now must make informed decisions about settlement. In this case, it may be wise to retain a neutral financial professional who can gather all financial data and educate both clients in order to even the playing field.
HOW DOES ENHANCED TEAM MEDIATION COMPARE TO TRADITIONAL MEDIATION?
In traditional mediation, a neutral mediator with significant experience in family law (often an attorney) facilitates the clients’ negotiation. Each client may also retain his or her separate consulting attorney to review proposals and draft and review the final agreement, but generally each mediation session is limited to the mediator and the two clients.
In enhanced mediation, a neutral mediator also facilitates the clients’ negotiation, and each client may retain an outside consulting attorney. In addition, enhanced mediation clients have access to neutral professionals, including a mental health professional, a financial professional, and a child specialist, depending on the issues in the case.
Traditional mediation may not be a good option for clients with a long history of mistrust, or where one client has a personality disorder. Traditional mediation is also generally not appropriate where there is a strong power imbalance or bullying. In this situation, one client may not consult the mediator for fear of upsetting the other client, or one client may not be completely truthful during negotiations based on fear of retaliation. Enhanced mediation or court-based litigation may be a better option because each client can use his or her retained mental health professional or consulting attorney as a resource.
HOW DOES ENHANCED MEDIATION COMPARE TO COLLABORATIVE DIVORCE?
Collaborative divorce is an interdisciplinary approach to divorce in which each client retains a separate attorney and divorce coach. In addition, clients often retain a financial professional and divorce coaches. Since divorce is experienced on a legal, financial, and emotional level, all three disciplines are an integral part of the entire process. The clients, their respective attorneys and divorce coaches, and the financial neutral make up the collaborative professional team. Generally, throughout the collaborative divorce process, the professional team is available to the clients at all times. In the streamlined collaborative divorce process, the clients and team make a concerted effort to only consult team members when needed because when fewer team members are engaged in a meeting, the clients save on fees. Even the streamlined collaborative divorce process can be too costly for some clients, however.
The enhanced mediation process shares common goals with collaborative divorce, including: (1) respectful and constructive communication, now and in the future (2) full disclosure, (3) preservation of family relationships, and (4) reduction of conflict between parents for the best interests of the children.
Enhanced mediation is distinct from collaborative divorce, however, in that even the streamlined collaborative divorce process requires that each client have his or her divorce attorney on hand at all meetings and negotiations. According to the enhanced mediation model, each professional—financial, child, real estate, etc.—need not be present at each meeting. The enhanced mediation model is based on the belief that while outside professionals are valuable, they don’t necessarily need to be involved in each interaction. After all, if a meeting concerns child custody, the child custody professional will be necessary, but a tax expert can be consulted as needed before or after the meeting if questions concerning that subject arise. While ideal to have all members of the team “on board” at all times as the collaborative model suggests, couples often choose enhanced or traditional mediation to save on cumulative fees.
Additionally, clients often express concern about the disqualification provision of collaborative divorce, which requires that attorneys and all professionals (mental health and financial) must withdraw if the clients do not reach an agreement and end up litigating in court. The clients must then “start over” and retain new attorneys (as well as financial and other professionals) to litigate their case in court. The benefit to the disqualification provision is powerful. The professionals have an incentive to strive for a settlement since failure to do so means they are out of a job. In enhanced mediation, however, the clients may choose to continue to work with the lawyers (not the mediator but the consulting lawyers) who represented them in mediation. The elimination of this disqualification provision assuages many client concerns about cost and “waste of time.” The downside is that clients and lawyers participating in a mediation can readily threaten “I’ll see you in court” with no repercussion.
Enhanced mediation recognizes the importance of teamwork. As in bobsledding, the mediator steers the process. The “crew” of clients and their respective consulting attorneys and professionals must work together to identify and prioritize issues and come up with solutions. Ideally, enhanced mediation offers clients the possibility of crossing the divorce finish line with positive solutions and bank accounts.