When divorcing parties successfully mediate their issues, they can rebuild their lives more readily. We know this. We know this empirically, anecdotally, and statistically. We know that when parties are given license to act in the absence of acrimony, their decisions are often more sound and sustainable than if a decision is handed to them by a judge whose knowledge of their families is limited to opening arguments and abbreviated testimony.
We know that when parents are empowered to craft creative custodial solutions and parenting parameters, the fruits of their collaboration are limitless. It renews their faith in parental interaction. It allows easier post-divorce transition. It mitigates the misery inherent in the breakup of a family. It promotes healing. It lays a foundation for continued dialogue, candid exchange, and fair dealing (Bailey, 2007; Bush & Folger, 1994). That it does all these things is implicit in what studies have repeatedly shown – that when parties decide their own future, they are more likely to comply with their divorce judgment than if their future is directed by a judge (Bailey, 2007; Emery & Wyer, 1987; Bahr, 1981).
Self Determination: Mediation’s Parapet
Self-determination is the principle in which mediation finds its genesis, the underpinning of its credibility and viability. “If confidentiality is the heart of mediation, self-determination is its soul” (Cohen, 2003). Skilled mediators create an atmosphere in which participants feel safe, uninhibited and empowered to articulate their needs and interests – a process that promotes self-determination (Hoffman, 1994). Mediation is not constrained by notions of time and tradition, factors that can color judicial decisions. It embraces a more leisurely tempo and promotes ingenuity. Its managers are cloaked in impartiality, not adjudicatory robes. Detachment is their gavel, the tool through which they control the process. Neutrals are wedded neither to precedent nor antiquated thought. They are catalysts of innovative resolution. Creative solutions, however, should never be stirred in ignorance.
Domestic mediators, while not dispensers of legal aphorisms or black-letter law, should be familiar with the legal issues raised during divorce mediation. Knowledge is their barometer. It tells them when a pro se party is being misinformed by a calculating attorney or opposing party. It rings a cautionary bell when those with superior status, education, intellectual capacity, or financial resources create an imbalance in bargaining power. It alerts them when passive, unsophisticated, uninformed parties are being bullied into agreements contrary to their interests (Bailey, 2007; Bryan, 1994; Welsh, 2004; Grillo, 1991).
Imagine a divorce mediation in which a husband’s attorney tells his client’s pro se, demoralized, uneducated wife that she has no legal interest in her husband’s 401K, funds acquired during their marriage. Or a wife’s attorney who tells his client’s deflated, unquestioning, unrepresented spouse that his 11-year-old son’s custodial election is controlling absent a showing of parental unfitness. If the pro se party in either instance consents to an agreement based on such legal misrepresentations, can it be said that such consent was informed?
If parties to mediation manipulate the process through calculated, careless, or inadvertent perversions of law or fact, consent is neither informed nor voluntary. And if mediators do nothing to recover the parties’ self-determination, then they are complicit in any uninformed or coerced outcome.
Recognizing Power Imbalances
Imagine that during mediation an attorney insists (either in ignorance or guile) that the court’s sole consideration in a modification of custody action is the child’s best interest, not any change of circumstance. Perhaps he postures that no change of circumstance exists because the mother was an addict at the time of the divorce and remains so now, even though the child has twice in the last six weeks been in the car when her mother was pulled over for DUI – each time with a blood alcohol content twice the legal limit. In such instances, it is foreseeable that a pro se, uninformed, weary father may lack self-determination. So what should mediators do? Should they excuse themselves and return with a copy of O.C.G.A. § 19‑9‑3(b) or refer to the Georgia Court of Appeals opinion in Saravia v. Mendoza, 303 Ga. App. 758 (2010)? Of course not, lest they violate their ethical obligation to remain neutral (and, if not a lawyer, engage in the unauthorized practice of law).
However, mediators’ toolboxes are replete with ethically sanctioned mechanisms to promote self-determination. For example, mediators can caucus with the pro se party and ask if he (or she) has spoken with an attorney. If the pro se party responds in the negative, mediators can ask if he (or she) would like to have a lawyer review the terms of any agreement reached. A timeframe for doing so (determined by the parties) could be written into the agreement. The mediators can also – diplomatically, gently, and at the appropriate time, so as to maintain neutrality – remind each of the parties of their mutual promise to make full, honest, and fair disclosures and to mediate in good faith.
In the event that a mediator perceives that a pro se party’s participation is not (or ceases to be) free and voluntary – that the combination of unequal bargaining power, lack of financial or legal sophistication, and misrepresentations have quashed self-determination or apparent capacity, then terminating the mediation may be the only appropriate option. The mediator should first ascertain whether self-determination can be restored, and if so, the most viable way of maintaining it (i.e. through a combination of shuttle mediation, unearthing interests, and reality testing).
Creating Opportunities for Parties to Engage Meaningfully in the Process
The Georgia Commission
on Dispute Resolution has not adopted Section 6(b)(2) of the Uniform
Mediation Act (2001), which allows a mediator to testify when the court
determines that the evidence sought is not otherwise available and that
the need for such evidence substantially outweighs any interest in
protecting the confidentiality of the process. According to the Georgia
Supreme Court, Georgia’s blanket rule on confidentiality is problematic:
“If parties believed that courts routinely would refuse to compel mediators to testify ... cynical parties would be encouraged either to try to escape commitments they made during mediations or to use threats of such escapes to try to re-negotiate … terms that they never would have been able to secure without … artificial and unfair leverage.” Wilson v. Wilson, 653 S.E. 2d 702 (2007).
To ensure that parties do not abuse the process through artificial and unfair leverage, it is critical that mediators be familiar with the law, acutely aware of what is transpiring in front of them, and prepared to respond appropriately – by, for example, assessing the relative power between parties and creating opportunities for the less powerful party to engage meaningfully in the process (Bailey, 2007; Cobb, 1993). Mediators can also foster self-determination by establishing and enforcing the mediation guidelines (Bailey, 2007).
The upshot is this: if mediators are unable to keep deception or intimidation from thwarting self-determination and jading the mediation process, then they risk contributing to an uninformed or coerced outcome. However, a neutral who familiarizes herself (or himself) with the law, is sensitive to power imbalances, and who creates opportunities for all parties to participate in the mediation process in a meaningful way, can help ensure that any agreement reached is voluntary, informed, and self-determined.
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