Have you experienced a mediation that left you feeling as if you failed to make any progress toward
resolving your dispute? Did you leave with a feeling that your mediator could have done more to
help you communicate with the other side? Maybe you thought if you had a better mediator, you could
have resolved your dispute that day.

 
I would suspect that many people would answer “yes” to the questions above.
 

As a result of the struggling U.S. economy, many people are attempting to handle their divorce
“pro se”, in other words, without attorney representation. In Florida, we have mandatory mediation
for divorce cases, so the majority of divorce cases involve spouses without lawyers trying to
resolve what can be an extremely complex area of the law without the help of lawyers and
mediators in roles of expert communicators and negotiators. As a result, the resolution of cases
balances precariously in the hands of your mediator. I hope you get lucky enough to draw a good one.

 
 

WHAT MAKES A HIGH QUALITY MEDIATOR IN FAMILY LAW DISPUTES?

The answer to this question could fill a book. In the limited space I have, I will
touch upon a couple of areas as follows:

 

First, he/she should be an expert communicator and know something about human psychology and
communication in conflict. What does this mean? If you get a mediator who talks to you in a way
that leaves you generally confused, ignored and frustrated, do you think he/she is going to do any
better with your spouse? An expert communicator is someone who knows what to say, when to say it,
and what not to say. He/she will actively listen to what you have to say and confirm his/her
understanding with you to make sure it is clear. He/she will ask you probing questions to explore
your needs and interests, rather than merely your position. Do you know the difference between an
interest and a position? Does your mediator? He/she better if you hope to resolve your dispute!

 

Communication in conflict is an area of human verbal and non-verbal communication that has
challenging issues that involve psychology and human relationships. For example, people in
conflict have a need to feel heard. Did your mediator listen to you? Are you sure? How do you know?
A good mediator will want to hear more about your interests and perspectives before getting down to
the positional bargaining that, unfortunately, some mediators focus upon. Do you know the difference
between positional based bargaining and interest based bargaining? You should if you are going to
negotiate anything, especially your own divorce settlement.

 

What more does a high quality mediator do other than go back and forth between the spouses who are
kept in separate rooms and talk about numbers and dollar figures?

 
Hopefully, A LOT MORE!
 

For example, if your mediator comes back to you after visiting with your spouse and says something
like “He won’t go for it,” ask you mediator why. Ask your mediator to explore the interest behind
his position so that you can truly understand your spouse’s perspective. How can the two of you,
with the help of a mediator, ever hope to reach a negotiated settlement if you have no clue where
your spouse is coming from on an issue? As I have said before, information is power in any
negotiation. Is your mediator helping you get the information you need to negotiate effectively?

 
THE BOTTOM LINE

First, I would generally advise the majority of people not to attempt to handle their divorce pro
se. Particularly if there are children and assets/property involved. Paying a lawyer to
represent you may actually save you money and future headaches in the long run. Second, do not
assume that your mediator is a good one. Just because someone has been “certified” by the State of
Florida to be a court mediator does not mean that he/she is a good or even adequate mediator.

 

Mediation is not a science. It is an art that draws upon life experiences and education beyond a
state certification program. I have known great mediators who are lawyers, mental health
professionals, financial professionals, social workers, and real estate agents. If you want to try
mediation to resolve your dispute, great! It does work. Just make sure you have a really good
mediator who will help you communicate with your spouse beyond shuttling settlement offers between
you.

 
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A.J. Grossman III is an Orlando family law attorney with the Winter Garden, Florida law firm of
Grossman & Grossman P.A. He holds a Master of Laws degree from the #1 ranked dispute
resolution program in the United States, The Straus Institute at Pepperdine University
School of Law. You can learn more about A.J. Grossman III at the
Grossman & Grossman P.A. website.