Tag Archives: Mediation

Eyes Wide Shut: A Note to My Future Mediation Colleagues

As established mediators, we have a responsibility to constantly both reflect upon, and critically assess the existing state of mediation training. Not in an effort to discredit but rather, to inform ourselves and others with a view to always seeking to improve it.

There is a Clear Divisiveness! And, Mediation Training May Contribute to It.

Ideally, as family mediators, we want to avoid creating more issues than divorcing couples already present with. Unfortunately, we still have a long journey ahead. In today’s dispute resolution context, there appears to be a great deal of confusion, for both the public and practitioners, as to who does what and who is best qualified to do the work of a “family mediator”. In Ontario, a few organizations, OAFM, FDRIO, ADRIO and FMC, have taken on the challenging task of developing accreditation standards. However, not every accredited mediator is treated or promoted equally in the field.

Intentionally or not, there is a clear distinction made between mediators who possess a law degree and those who have other degrees. This distinction, unfortunately only becomes evident at the commencement of mediation training and after the commitment of thousands of dollars to family mediation courses. It is my experience, also shared by many others, that the divisiveness intensifies even more upon completion of training, specifically when mediators go on to establish a private practice, assuming that that’s the goal of their pursuing mediation training.

Lawyers as Teachers of Mediation…

The vast majority of trainers in the family mediation field are lawyers. This may be of concern. For one, the skills required to practice law are very different than those needed to practice mediation.  As such, when teaching, there may be an unintentional altering of those skills promoted in the course outline. Lawyers as instructors (and without any teaching background) may cause a training program to be biased and, therefore subtly (or not) steer learning away from its original direction and intention. In fact, the perception of bias alone may jeopardize the trainer-trainee relationship and, in turn, impact the attribution of a trainer’s competence. Without trust, admiration and inspiration, learning will inevitably be stunted.

Second, self-esteem and confidence in one’s ability may be either seriously compromised or incorrectly exaggerated. One example that comes to mind is the assertion made throughout dispute resolution courses that, even upon completion, those without a legal background cannot/should not deal with parties’ financials. This is interesting because outside of a recent 21-hour course, there are no such impositions for lawyers when addressing non-financial/non-legal issues. Simply put, one may purport that having a law degree equates with competency in all areas. This mindset does not only create a fundamental imbalance; it also sets a dangerous precedent. On one hand, it acts to inflate a lawyer’s confidence in skills they may not possess, such as developing child-focused parenting plans; understanding the underlying interplay of complex cognitive, emotional and psychological factors; managing emotions; recognizing and addressing mental health concerns; and, properly identifying and managing risk of abuse during and post-separation. On the other hand, it can serve to deflate the confidence of those who do not have a law degree and frighten them away from conducting what’s referred to as “comprehensive” family mediation, where all of the matters are supposedly dealt with in mediation.

It is then, not an accident nor a coincidence that, post-mediation training, the imbalance continues to intensify and, so, potentially affects the establishing of a lucrative practice, if that’s the goal! Lawyers have been primed to believe they have all the necessary skills and are given the green light to conduct comprehensive family mediation, whereas mediators with other than law degrees have been warned against doing so as if to suggest their skills are somehow inferior. And, so, despite having undergone similar training and accreditation process, the design of mediation trainings places some mediators at a clear advantage while others are only left with thousands of dollars in debt (on top of  frustration and confusion).

In her report, “Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice“, Urška Velikonja, a Teaching Fellow at Harvard University, points to trainers as having a responsibility to fully disclose the realities of mediation practice to aspiring mediators:

The failure by mediation trainers to provide accurate information about opportunities to make money in mediation contributes to excess entry in the market for mediation services….[I]naccurate information about the availability of mediation jobs as well as overoptimism lead aspirant mediators to spend money on mediation training and starting a mediation practice, and incur opportunity costs by foregoing other career opportunities. Not only may the failure of mediation trainers to fully disclose the pros and cons of mediation practice and correct trainee misapprehensions be unethical, it also leads to socially inefficient outcomes. To correct this misallocation of resources, mediation training programs should disclose information about “the known opportunities, limits, and obstacles in mediation in mediation employment and professional practice opportunities.”

Skilled Mediators Are Overshadowed by Turf-Wars and Politics

In reality, it is extremely difficult, if not impossible, for accredited family mediators who have other than law degrees to establish a successful practice. Why? Well, if only family mediators with a law degree are told they can do it all (financials, parenting and draft separation agreements) then there is no incentive for disputing couples to go anywhere else. And, how are family mediators without a law degree expected to promote their business: “Accredited Family Mediators Offering Some Mediation Services”? You see how quickly this can become a highly frustrating exercise. Second, a large number of lawyers refuse to work with mediators who don’t have a law degree, deeming their work as “sub-par”. This sad reality ultimately spills into the quality of service that divorcing families receive; since evidently it would be best to work together to provide for most effective process.

Family mediation training is a good example of a faulty design where learner-centricity is overshadowed by turf wars and politics. As it stands, its design greatly destabilizes the original core of ADR, pulling farther away from clients’ self-determinism and right to options. Without a doubt, it incorrectly promotes the conceptualization of mediation as an extension of the law model and/or a mere add-on to one’s law practice. Today, many lawyers feel OK including “family mediation” as one of their services, even when they don’t have any mediation training whatsoever. How come? For one, the Rules of Professional Conduct allow for anyone to be a mediator, with a minor caveat that they are to remain “neutral” and stay away from providing legal advice (pretty vague and subjective). And, second, the mediation field has established the ground for lawyers to be perceived as “superior” family mediators; this is not only evidenced by the language and materials used in coursework, but also by the difference in mediator fees (for example, some Ontario courts have a fee cap for family mediators who have other than law degree).

To date, there is no research suggesting a correlation between a particular professional or educational background and the success at being a mediator. Theoretically, anyone can put up a shingle and call themselves mediators. Same thing goes for mediation trainers. One does not need to have special qualifications or educational background to develop a mediation training. There are, however, a few “established” trainers who pretty much control this market; and a large number them also happen to be at the helm of mediation course accreditation. This raises a number of ethical dilemmas, but that topic is beyond the scope of this article. I am only referencing it because I feel it is an important piece, illustrative of a larger cycle of bias.

My fear, which I wrote about plenty, is still very much alive: lawyer-centricity is causing a shift away from the original intention of ADR by placing focus on systems rather than families’ needs. And, as we can see, much of the mediation training contributes to this.

Want to be a Family Mediator: CAVEAT EMPTOR

I am not suggesting that everyone who’s taking mediation training wants to make a career out of it! But, most mediation courses are being marketed and sold that way; and lots of people jump both feet in! Optimistic and energizing keywords are consistently inserted in marketing campaigns, creating the illusion that mediation training is a gateway to full-time employment or that second career. In reality, out of tens of thousands trainees, very few get to practice mediation and even fewer get to make mediation their full-time job. And, a large majority give up within two years to return to paying jobs. There are many contributing reasons:

  1. Trainers don’t fully disclose the obstacles of obtaining mediation work and so, many trainees discover these too late in the game. As Urška Velikonja puts it: “…the profession trains too many people for jobs that do not exist.. But, the trainers do make money!
  2. The training is heavily skewed towards lawyers: after all, most instructors are lawyers.
  3. It takes a lot more than a mediation training to be or become a successful mediator. Young graduates virtually don’t stand a chance to turn family mediation into a day-job. One wouldn’t, however, be able to read this very fine print anywhere.
  4. Gaining experience requires hands-on practice. Finding an established mediator to work with and teach you the ropes is not an easy task at all! It’s a pretty lonely road ahead once training is completed.

Ironically, and this is where we should turn our minds to, the public does not really make any distinction between accredited and non-accredited family mediators. Whose responsibility is this?

All in all…do not despair – Information is power! If family mediation is your field of choice, be wise and strategic! It’s not a regulated field; I am not saying it should be (that’s a whole different story)! Do your research on training, trainers and course materials. Ask critical questions about how you will achieve the course objectives and reflect on how those match your personal and professional goals. Call mediators in your community and ask about their experiences in the field. But, for the love of God, do not quit your day job – not just yet!

Ten Tips for Success in Resolving Parenting Disputes

Ten Tips for Success in Resolving Parenting Disputes

By Hon. Harvey Brownstone, Toronto, Ontario, Canada

  1. Be child-focused.

Parents must learn to love their children more than they dislike each other. Children need peace more than their parents need to win. Make your child’s well-being the focal point of every discussion you have with your ex-partner. Before taking a position on any issue, ask yourself, How will this affect my child? Ask your ex-partner to do the same. Never let a discussion with your ex-partner be about your needs or his/her needs; it should always be about your child’s needs. If you cannot agree on which solution would best meet your child’s needs, ask yourself how you and your ex-partner would have decided this issue had you remained together as a couple. In most cases, the answer would be to consult an expert. For example, if you and your ex-partner have a disagreement about your child’s health, or educational needs, or extracurricular activities, you should both be meeting with your child’s doctor, school, a family counsellor, or parenting coach. There are many professionals with special expertise to help parents resolve their disputes in a child-focused way. The first step to being a mature, responsible co-parent is to always put your children’s needs ahead of your own.

  1. Learn to distinguish between a bad partner and a bad parent.

The fact that your ex-partner was a bad partner does not necessarily mean that he/she is a bad parent. In my experience, most people who have been unfaithful to their spouses have actually treated their children very well. The way that a person treats his/her spouse in an unhappy relationship when no children are present may not be a good indication of how that person treats his/her children. It can be extremely difficult for a parent who has been mistreated by the other parent to accept that the child might see that parent differently and have a good relationship with him/her. Your child is entitled to get to know the other parent in his/her own right and to have a relationship with the other parent that is independent from your own. Even if the other parent is flawed, and even if restrictions or limitations must be placed on his/her contact with the child, your child can still have a safe and beneficial relationship with that parent. If your feelings about the other parent are standing in the way of your child’s relationship with him/her, you should seek help from a counsellor or therapist.

  1. Never speak negatively to the child about the other parent.

Your child has a right to a loving relationship with each parent, free of any influence or brainwashing. Moreover, your child needs and deserves emotional permission from you to enjoy his/her relationship with the other parent. It is unfair and cruel to place your child in a conflict of loyalties and make him/her choose between you and your ex-partner, as this deprives the child of an important relationship. Keep your thoughts and opinions about the other parent to yourself; never share them with your child. Never draw your child into your disputes with the other parent. And while I’m at it, you should never criticize the other parent’s family, new partner, or friends in front of your child. Nor should you tolerate your relatives, new partner, or friends denigrating or berating the other parent in front of your child. Make it clear to them that your child is to be shielded and protected from adult conflicts. Besides, it makes absolutely no sense to criticize people that your child is going to have a lot of contact with — what exactly do you want a child to do with this information? Most of the time a child will go right to the person who has been criticized and repeat everything you have said! Trust me, I’ve seen it happen thousands of times. One thing I have trouble understanding is why parents criticize each other’s new partners. If you were attracted enough to your ex-partner to have a child with him/her, why does it surprise you that someone else finds him/her attractive? In most cases, a new partner had nothing to do with the breakup and is going to have considerable contact with your child. You gain nothing by making an enemy of that person.

  1. Never argue or fight in front of your children.

No exceptions. If you and your ex-partner cannot behave civilly in front of your child, then don’t be together in front of your child. It’s that simple. I cannot understand why so many parents have trouble pretending to get along with each other for the few minutes it takes to pick up or return a child at access exchanges. It’s called acting, and it’s not that hard to do! Parents — even those who live together — pretend in front of their children all the time. It is even more important to do this after separation, because children need to be reassured that their lives will be happy and stable even though their parents live apart. Why are parents able to behave well in a courtroom in front of a judge (at least the vast majority do) but not in front of their own children? Don’t they love their children enough to say “hello,” “good- bye,” and “have a nice day,” and make small talk for the sake of keeping things peaceful and pleasant? Apparently not. This is shameful. There are lots of ways for parents to communicate with each other without the children being present: they can meet in person, or use telephones, faxes, letters, e-mails, and, of course, they can communicate through their lawyers. There is absolutely no good reason for parents to expose their children to their conflict.

Parents who continually fail to heed this advice should be prepared to welcome the child protection authorities into their lives. (See Chapter 11.)

  1. Listen to the other parent’s point of view even if you don’t agree with it.

If you are going to communicate directly with your ex-partner, remember that communicating with maturity starts with listening. You must learn to really hear what your ex-partner is saying, and understand his/her point of view. In any disagreement, try repeating back to your ex-partner what his/her position is, and the reasons why he/she is taking that position. I often do this in court and am frequently amazed by many people’s inability to correctly repeat back to me what their ex-partners have just finished telling me only a few seconds before! For that matter, I am equally amazed at how often I am accused of saying things I did not say — thank heavens we have transcripts in court that record exactly what was said! The point I am making is that you cannot decide whether you agree with someone if you have not clearly understood what he/she is saying. You must put your emotions aside and listen with your brain. Even if you end up disagreeing with the other parent, you should at least be able to convey to him/her that you have understood his/her point of view. Many times I find that once two people have clearly understood the other’s position, they are not as far apart as they first thought they were. Good listening skills are not acquired overnight, but post-separation counselling can be very helpful in speeding up the learning process.

  1. Consider mediation before giving the decision-making power to a judge.

Too many parents react in a knee-jerk way to each other’s conduct by running to family court without first getting legal advice or considering the impact of starting a court case. It is essential to consult a family law lawyer before taking any steps to resolve a conflict with an ex-partner. Your lawyer will explain your options and advise you on which one will best fit your situation. It may not be necessary to turn the decision-making power over to a judge. With the right help, you and your ex-partner may be able to arrive at compromises that will be better for your family than a court-imposed decision. Many thousands of parents have found mediation to be a beneficial problem-solving mechanism, so it is definitely worth exploring. For all the reasons given in Chapter 2, going to court should be a last resort, except for the special circumstances set out in Chapter 3.

  1. Separate your financial issues from your parenting issues.

In any family breakdown, there are two types of issues to be resolved: financial issues and parenting issues. These are completely separate matters and should be dealt with that way. With the exception of the intersection that might occur between access and child support (see Chapter 9), you should not allow your discussions and disagreements over property and money to enter into your co-parenting relationship. Your relationship with your children should have nothing to do with financial transactions or property transfers. Even if your ex-partner’s conduct regarding financial matters is making life difficult for you, this should not interfere with his/her role in your child’s life. It can certainly be a challenge to behave civilly with someone whom you think is trying to cheat you financially, but the ability to keep parenting issues separate from financial matters is a hallmark of maturity.

  1. Be flexible and reasonable in making access arrangements.

By far the greatest area of conflict between separated parents is that of organizing, carrying out, and enforcing access visits. Family courts everywhere are swamped with parents complaining of each other’s frequent cancellations, lateness, and a myriad of other misbehaviours. In a great many of these cases, a little common sense and fairness from both parents would have gone a long way toward resolving the problem. Do your best to follow the four simple tips about access given in Chapter 12. Be flexible and reasonable in accommodating your ex-partner’s work schedule and travel concerns, as well as changes in your child’s routines. Be considerate when dealing with access on special occasions and during vacation periods. You never know when you might need your expartner to extend the same consideration to you. Remember that access schedules must be adjusted to accommodate changes in the parents’ and children’s lives. This is not only normal but is to be expected, so go with the flow, don’t make a big deal out of every minor deviation from your access schedule, and be willing to make compromises for your child’s sake.

  1. Your children still see you as a family, so communicate!

As I have mentioned, you can be an ex-partner, but you are never going to be an ex-parent. If you truly accept that your children are innocent and bear no responsibility for your separation, then you know that they are entitled to be part of a family and to have their parents behave like family members, even though they live apart. Children who have contact with both parents need them to communicate with each other. I have had situations in which a child’s health suffered because one parent didn’t tell the other about the child’s medical problem, so the child didn’t get the proper medical attention in the other parent’s care. This is unforgivable. When a child is going frequently from one parent’s home to the other’s, it is vital that each parent know about anything important that has happened to the child while in the other parent’s care, especially an illness. It is also important for parents to have each other’s addresses and telephone numbers, unless there is a very good reason to not disclose this information — and even in that case, there must be some way for parents to contact each other (for example, through a third party) in the event of an emergency. Parents should have equal rights to obtain information about their children from schools, doctors, and other service providers. Parents should have equal rights to attend important meetings such as parent-teacher interviews or key medical appointments. Both parents should be able to attend special events in the children’s lives such as religious ceremonies, school events, sports tournaments, and music recitals. Even if there is a restraining order (or criminal court no-contact order) prohibiting contact, speak to your lawyer about the possibility of amending the order to permit at least some minimal form of communication regarding your child, even if it is in written form (for example, by using a communication book), or through a third-party intermediary. Your children need you to know what’s happening in their lives even when they’re with the other parent. If possible, find a safe and legal way to make this happen.

  1. Don’t hesitate to get help.

Family breakdown is one of the most stressful and painful experiences anyone can go through. The challenge of overcoming a failed partner- ship while at the same time developing a good working relationship with an ex-partner can be overwhelming. You do not have to do this alone. There are specialized counsellors and therapists who can help you, your ex-partner, and your child. Many community organizations offer excellent programs to help separated parents and their children make the necessary transition from ex-partner to co-parent. There are social workers and parenting coaches with the expertise to help you and your ex-partner develop a workable parenting plan. There are many books that offer great ideas (see “Suggested Reading”). Speak to your family doctor about a referral to a counsellor or therapist. It’s worth attending one meeting just to find out what services might be available to you and your family. Finally, remember that your family law lawyer is there to help you and can refer you to a number of community resources. Family law lawyers, like family court judges, know only too well that post-separation parental disputes are about much, much more than the law. Don’t let the legal aspects of your dispute interfere with the critically important human aspects. If you do, you may be doing a disservice to your children.

 

From Tug of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of

Family Court by Harvey Brownstone © 2008 by Harvey Brownstone. All rights reserved. Published by ECW Press Ltd.

Turning NO into YES

Throughout our lives, we will all face adversity and confrontation, often simply because others disagree with our wishes, desires or opinions. These challenges can be as simple as what to watch on television or as complex as custody plans after a family undergoes a separation. No matter the issue, it is often helpful to a mutually beneficial resolution to understand why others are saying No, and how to turn that No into a Yes!

Many people feel that the only successful outcome of a negotiation is to get the other person to agree with everything that they are proposing to settle the matter. While this will certain leave one party happy, it will almost certainly cause resentment, frustration and dissatisfaction for the other party and may result in a repeat visit to the issue in the (near) future.

It is almost a given that some people will say No to a proposal as we are all somewhat conditioned to hearing No throughout our lives. No – you cannot have another cookie! No – you can’t stay out late on a school night! No – you can’t do your homework later! So, when we hear a No, it doesn’t always mean that the person who said No is convinced that is the correct response. It may be a conditioned response, especially in a new and confusing situation. The role of the mediator is to discover the true reason behind the response so that the core issue can be discussed. Sometimes, a No is simply automatic and may not have any conviction behind it. This is when everyone has to remain calm and not let emotions interfere. Instead of getting frustrated or upset, the path to agreement is to see the response of No as a step and not as the final decision.  It is important to continue the discussion and to focus on the desired outcome, which is to find the best way to satisfy everyone’s objective. This is best accomplished by dispassionate discussions as to why each party feels that they are correct in their position, why they feel this way. One of the best methods of discovering this reason is to inquire as to the worst possible outcome of each decision, and then digging deeper as to why those fears exist. For example, if one parent feels reluctant to have the children stay with their ex-partner without supervision, it is important to determine what they fear will happen. Do they fear that the other parent will neglect the child’s needs or not care for the children according to their standard? And if so, what do they fear will be the outcome of this neglect?  Will the children suffer any real physical or emotional harm, or will they be left to watch too much television? If real harm is feared, then the reluctance is justified and must be addressed, especially in regard to what has occurred in the past to introduce these fears. If the fear is that the children won’t be engaged and kept busy, then perhaps the resolution would be a schedule of expectations that each parent will respect and follow. Homework, hygiene and proper sleep and nutrition for children are usually a shared concern and one that may be easily resolved. If there are other underlying concerns, such as substance abuse or emotional manipulation, then the outcome may be complicated by these concerns. However, no resolution is possible without open and honest communication. Problems are usually easy to recognize – what makes the mediation process powerful is when both parents work together to both identify and offer possible solutions to turn those NO’s into YES’s!

Jon Himelfarb, Father and Friend

Protecting Your Children Through Separation and After

Separation and divorce is a very scary and confusing time for children and they often do not have the communication tools that they require to let parents know what they are feeling or experiencing. The role of a parent is to educate and nurture their children to the best of their ability. However, the age of the children and the uncertainty that are feeling will have a huge impact on how they perceive the separation and how they understand the new family dynamic. There are many underlying emotions that the children will experience and parents may be excluded or unaware of the complexity of what their children feel or thinks. To help parents and children adjust to the family transitions, we have prepared some guidelines:

  • Children will be better able to cope if their parents can be seen to share the responsibility for their welfare. So, telling them together about when and what is going to happen will show them that you can still be Mom and Dad even though you’re not together as a couple any more.
  • While you want to be open and honest with the children, try to keep in mind what they can cope with at their different ages. They do not need to know every single detail about what has gone wrong, nor should they be involved in any conflict between you and your partner.
  • Try to keep as normal a routine as possible going. When the routine has to change, introduce the changes as slowly as you can and talk them through with the children.
  • Remind them that you will always be their parents even though you may not be a couple any longer
  • Reassure them that it’s not their fault that you have decided to separate – this is between the two of you.
  • Do everything you can to help yourselves adjust to your new situation, especially if you are the parent with primary residence. Children are very sensitive to their parents’ feelings and may see and be affected by a parent’s state of happiness or any lingering bitterness or animosity.
  • Reassure them that you have decided to separate from each other but not from them; you are still their parents.
  • Do not put the children in a position where they have to choose between the two of you. The children should never feel as if they have to choose sides, they should only feel that their parents love them unconditionally. Even a simple act such as asking a child to pass along a message or mentioning that financial or custody arrangements are interfering with a scheduled trip, may cause the children emotional distress.
  • Always try and speak in a positive and encouraging manner about your ex-partner. Hearing a nasty comment about a parent will always cause a child to feel anger and distress, regardless of the source. Remember, the child is 50% you and 50% your ex-partner; denigrating your ex-partner is denigrating half of your child! That’s how your child will internalize it!
  • Try and understand the situation from the child’s perspective. For example, your ex-partner may have a new romantic interest that your child will meet. While you may not approve of this new relationship, it is important not to send this message to the child. Your child may enjoy the attention and affection of your ex-partner’s new romantic interest and shouldn’t feel guilty or that they are betraying you because of this. Ultimately, your child will always grow and benefit from love, affection and encouragement and, while it may be difficult for you, keeping the child’s welfare in mind in this new dynamic is crucially important.

– Jon Himelfarb, Father and Friend