I’m mad.
In my state, retired judges are misleading the public about what mediation is and giving mediation a bad reputation. I suspect they are doing the same in many other states and provinces. Although they say they are mediating, they are acting in ways that violate the ethical standards for mediators approved by the American Bar Association (ABA), the Association for Conflict Resolution (ACR), and the Academy of Professional Family Mediators (APFM).
Because I live and work in Virginia, I will mention that the judges are also violating the Standards of Ethics and Professional Responsibility the Supreme Court of Virginia has provided for court-certified mediators.
All of those organizations specify that the three characteristics listed below are included in the definition of mediation. According to ACR, “Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision-making by the parties to the dispute.”
Quotations in this article are taken from ACR or APFM. Links to those sets of standards on the Internet appear at the end of the article.
Characteristics of Ethical Mediation:
1. Self-Determination, Which Includes Voluntary, Un-coerced Decision-Making
The parties to the dispute are free to choose how to settle their dispute. Each party makes free and informed choices about process and outcome. If your judge “mediator” is telling you what you should agree to, then he is not mediating. If your judge “mediator” is bullying you to agree to a settlement proposal, then she is not mediating. If the message is “We’re going to stay here until you settle this,” then the judge is not mediating.
2. Impartiality of the Mediator
“A professional family mediator shall conduct the mediation process in an impartial manner.” If your judge “mediator” is taking one person’s side with regard to custody, visitation, who gets the marital home, or any other matter, he is not mediating.
3. Procedural Fairness
“A mediator shall conduct a mediation… in a manner that promotes party participation, procedural fairness, party competency, and mutual respect among all participants.” If your judge “mediator” is preventing you and the other party from communicating with each other by keeping you in separate rooms and controlling the flow of information from one room to the other, then she is probably not mediating. Here, too, telling you what to agree to or bullying you is not acceptable. If your judge “mediator” is insisting that you stay in session after more than 12 consecutive hours of meetings (with breaks for food) and past midnight, when you are too exhausted to think straight, then he is not mediating.
What Retired Judges Really Do
Retired judges supervise high-pressure settlement conferences. They let you and your lawyers argue your case and present your evidence, let the other party do the same, and guide you to the settlement they would order you to accept if they were on the bench deciding the case. One lawyer told me “high-pressure settlement conference” is too gentle a label for what they do. In that person’s opinion, the judges issue “directed settlements.”
It’s OK for them to do that. The service they provide has value. Sixteen consecutive hours working with a retired judge and having some degree of ability to say no to a settlement proposal is better for some people than paying the full emotional and financial cost of going to trial. But it is NOT mediation.
Why This Matters
According to ACR, “Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements.” Real mediators treat both parties with respect and help them communicate what matters to each of them and why, hear each other, brainstorm solutions, get creative when necessary, and think about long-term consequences of their decisions. Real mediators help the parties make voluntary, well-informed decisions without pressuring them to move in any direction.
The ACR and APFM ethical standards serve three primary goals: “to guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes.” To the extent that lawyers and members of the public believe that what retired judges do when they say they are mediating is in fact ethical mediation, the judges are doing a great disservice to the public. They are misleading people about what mediation is and undermining public confidence in mediation.
That is really a shame, because real mediation is the best approach to divorce for most families. Mediation costs much less than working through courts and lawyers, gets everything settled sooner, and keeps emotional distress to a minimum. Mediation leaves you and your soon-to-be-ex in control of the decisions for your family.
Footnotes or References:
The ethical standards for mediators mentioned in this article are available online as follows:
ACR Model Standards of Conduct for Mediators
APFM Standards of Practice for Professional Family Mediators
Standards of Ethics and Professional Responsibility for Certified Mediators in Virginia
Virginia L. Colin, Ph.D is a professional family mediator, the Director of Colin Family Mediation Group LLC, and Internet talk radio show host of “Family Matters” on VoiceAmerica.com. Formerly a research psychologist, she has been providing family mediation services since 1999. Dr. Colin has written two books: “Human Attachment” (1996) and “The Guide to Low-Cost Divorce in Virginia” (2014). She has been a foster parent, a married parent, a divorced single parent, and a remarried stepparent.
When a mediator tells the father “this is a matriarchal court”, dad knows he’s not in a good situation to mediate.
If the court is matriarchal, the dad is not in a good situation if he goes to court and leaves decisions to the judge. He may get a much better outcome for his kids and himself through professional, ethical, respectful mediation.
Only if the mother isn’t a high conflict individual who is more than willing to spend you into the poor house. (and has the ability to do so, unlike most single mothers)
The divorce was long final and she didn’t want to share the kids in spite of the original agreement. Mediation was a huge waste of time and the kids were tired of her giving them her views, blow-by-blow. We gave up trying to co-parent, for their sake.
I’m so sorry that happened. I hope the kids get to see you more after they reach age 18. I hope you stay in touch somehow in the meantime.
While there is some truth to the author’s opinions about retired judges as mediators, it is inaccurate to say that a majority are not neutral and always strong arm parties to settle. Attorney mediators can be just as susceptible to such approaches. Instead, it is perhaps more true that few judges learn how to negotiate on the bench. There they rule. Experience as a judge also does not bring clairvoyance with it. Judges are no better at predicting trial outcomes than anyone else.
I have been saying this for a very long time. I can’t even recall just how many articles I’ve published on this subject.
I wouldn’t make a blanket statement that “Retired Judges Don’t Mediate”, however. I know a few retired judges who do, in fact, mediate. I also know plenty of lawyers who “mediate” in just the same way as do most retired judges. When lawyers are involved in the selection of a mediator, they tend to select retired judges and lawyers who mediate in a similar manner. This unfortunate reality has to do with familiarity and comfort with paternalism and a win/lose paradigm.
I regularly complain that lawyers and judges have caused confusion in the marketplace by referring to such judging as “mediation.” This form of mediation is known as “evaluative mediation” and is also known as “soft arbitration,” or as I like to call it, “an alternative form of litigation.” The State Bar of Maryland is the only Bar Association that has conducted research on different types of mediation and “evaluative mediation” is not considered mediation by the State Bar of Maryland.
Two of the many articles or chapters I’ve written, wherein I discussed this tragedy are as follows:
“How To Select The Best Mediator Is a Must Read for Everyone”
(http://www.huffingtonpost.com/mark-baer/how-to-select-the-best-mediator-everyone-must-read_b_6172870.html); and
“A Comparison of Dispute Resolution Methods Available in Family Law Matters”
(http://www.markbaeresq.com/documents/Baer-Chapter.pdf)
It is a disgrace that this type of behavior goes on because it has very seriously damaged people’s perceptions of real mediation and has harmed a great many people who’ve been subjected to such “mediation”, when they would have been far better served through real mediation.
You are right. In rare instances, a retired judge does learn how to provide real mediation services. Also many lawyers who claim to be mediating use the same evaluative and coercive tactics that retired judges usually use. It is a huge problem. Far too many people are misinformed about what real mediation is.
Retired judges are use to making decisions, not fostering compromise. Why are they suddenly able to switch gears. Why not use someone, who has been trained and spent years seeking a mediated solution to conflict?