Oran Kaufman 10/29/18 Oran Kaufman 10/29/18

What Should You Ask Your Mediator at the First Session?

At my initial free consultations, I usually start by giving potential clients an overview of the mediation process, a little bit of background about me and my philosophy about family law and mediation. At some point I will turn to the clients and ask if they have any questions. I am often surprised that prospective clients have no questions. It could be that I have done such a comprehensive and fantastic job explaining the process that they truly feel they have all the information they need. I don’t really think that is it though. Maybe they have already done all the research they need. Sometimes I think that the process is so overwhelming that clients may simply be distracted and not know what to ask. For most people it is their first time divorcing and they do not know where to start. Finally, sometimes clients have been referred by people, they are not shopping around and have come in to the initial session knowing that they plan to hire me. Sometimes, in those situation, clients save their questions for after we officially get started.

What I offer below is some thoughts and ideas of questions that may be helpful to ask at your initial consultation with your mediator. A free initial consultation is an opportunity to get to know your potential mediator and make sure that you are making the right decision. This person is going to help guide you in making some of the most important decisions of you life. Due diligence is not just important, it is critical.

1. First, hopefully you will have determined before the first session if the initial consultation is free. I covered this in a previous blog post. (see https://www.amherstmediators.com/2017/10/free-initial-consultation.html). In short, some mediators charge for the initial session and some don’t. I do not charge for an initial session. I see it as an opportunity for the clients to make sure they feel comfortable with me as the mediator and for me to make sure that the case is appropriate for mediation.

2. There are a number of questions which are important to ask but which will inevitably fall into the “it depends” category. While it is not within the scope of this article to answer the questions posed below, please refer to previous blog articles which discuss the questions in substance.

a. How long will it take? This question has two parts. First is, how long will the mediation itself take and second is how long will the divorce action take?

b. Related to the first question is how much will it cost? How long the process lasts and how much it costs are the two most common questions. (For a substantive discussion of these questions- see https://www.amherstmediators.com/2017/02/more-frequently-asked-questions-that.html.

3. Do you meet at regular intervals, (say for instance every two weeks) or is the scheduling based on the individual needs and schedules of the clients? Mediators have different approaches to this issue. Some will meet at prescribed intervals and some will leave it to the clients to determine the pace. There are pros and cons to each approach but you should think about your situation and what would work best for you.

4. Does the mediator take a retainer or do clients pay as they go? This is a very important question that may have an impact on whether you choose a particular mediator. I find that many clients that I deal with are struggling financially. Many clients come into mediation already in debt and now having two households is another additional burden. I have clients for whom the pace of the mediation (i.e.- how often we meet) depends on whether they have the money to pay for the session. One of the advantages of mediation over litigation is that it is almost always cheaper. If clients have to come up with a $2,500.00 or $5,000.00 retainer at the beginning of the mediation, they simply may not have the ability to come up with that much up front. I, for instance, ask clients to pay at the end of every session but they pay as they go. (I ask for a small retainer of $300.00 which is used for drafting and time spent outside of the actual mediation). I find that having clients pay as they go makes it affordable for clients and keeps them in control of the cost.

5. Will the mediator draft the ultimate agreement? If the parties reach an agreement, will the mediator draft it? This may seem like a question with an obvious answer but in fact, not all mediators will draft a divorce agreement and not all mediators can draft a divorce agreement. If the mediator is not an attorney, then the mediator cannot draft a divorce agreement as it could be seen as the unauthorized practice of law. Non-lawyer mediators often draft agreements called a “Memorandum of Understanding”. There are also lawyer mediators who choose to help clients reach an agreement but choose to not draft the agreement. This means the clients then need to hire their own lawyers (or have their current lawyers) draft the agreement.

6. Will the mediator draft the court papers? When I first started mediating in 1994, I left my initial training with the impression that it was not appropriate to draft court papers for clients. As I started mediating more, I quickly encountered the common situation where the parties had reached an agreement but now discovered that they needed to either hire a lawyer or draft the court papers on their own. While preparing the court papers is not tremendously complicated, for clients in the midst of the anxiety of the divorce, it was just one more thing. Although I give clients the choice of either my drafting the court papers or their drafting the paperwork and saving a little money, almost 100% of the time, clients have me draft the paperwork.

7. Will the mediator go to court with the parties?

8. Will the mediator tell the parties what is a fair agreement? Another way to ask this question is “What is the role of the mediator?” This is a critical question that goes to the heart of the approach that the mediator will take. There are some mediators who see themselves as more directive and some mediators consider themselves facilitative. A directive mediator will give you his or her opinion on what is fair or what a court might do. A mediator who is a facilitative mediator will help the parties reach an agreement, discuss the issues, explore options but will not tell the parties what he or she thinks the parties should do. I spend a fair amount of time discussing this with clients. I am a facilitative mediator. I will not tell clients what I think is fair because ultimately my goal is for them to reach an agreement based on what they think is fair- not what I think is fair. My conception of fair is based on my world views and biases. My goal is to make sure they have all the information they need to make an informed decision.

9. The corollary to the above question is will the mediator tell the parties if she thinks the agreement is not fair? This is a complex question. In addition to my goal of making sure they have all the information they need to make an informed decision, I want to make sure that when they go to court, things will go smoothly and the judge will approve their agreement. If I think they are agreeing to something which may lead to a problem with the judge approving the agreement, I will discuss it with the clients. How did they arrive at the decision? Do they understand it? Do they believe it is fair? I don’t see it as my job to change their minds but I do see it as my job to make sure they are not under some misunderstanding of the law or facts and I want to make sure that their rationale is sound.

10. Other than court papers, will the parties need anything else that would require drafting or lawyers and how much will that cost? The answer to this depends on the individual situation. There may need to be deeds drafted, Qualified Domestic Relations Orders drafted and there will be a cost for these. Find how in advance how the mediator will handle this? Will the mediator draft the QDRO or Deed if those are necessary?

11. How well does the mediator know the particular court that your divorce will be filed in? This could be extremely helpful and important. I have had situations where timing for filing the divorce was critical because a party was moving out of state. I was able to call the right person at the court and obtain a date in short order and the clients were able to process their divorce before one of the parties moved. Different courts have different processes. It is helpful if the mediator knows those individual idiosyncrasies so that the clients are prepared when they appear before the court.

12. Are there any downsides to using mediation? There are always pros and cons to every decision you make. Talk to your mediator about what he or she thinks are the pros and cons of the mediation process.

13. Should I have my own lawyer? I always encourage clients to speak to their own lawyer. This is important to talk to the mediator about. Some mediators will not take the mediation if clients do not have lawyers. Talk with your mediator about the role/or non-role of lawyers in the process.

14. Does the mediator meet with clients individually? This is another area that mediators approach very differently. Talk to your mediator about how they approach individual meetings and think about what is important for you on this front. See https://www.amherstmediators.com/2016/07/neutrality-and-transparency.html

Questions you may be tempted to ask but which I don’t recommend?

1. What is your success rate?

2. Do you keep track of what percentage of cases settle?

3. What do you think is fair?

The reason I don’t recommend the above questions is a whole article in itself. Maybe a better question for the mediator would be, “How do you define success?” It is precisely because I do not believe there is just one answer to the question that I don’t like the question of what is my success rate, and why I do not keep a track record or batting average of cases settled.

There are some obvious questions which may or may not be important to you and which probably apply to any situations where you are hiring someone, like

1. How many years have you been mediating?

2. What percentage of your practice is mediation?

3. What percentage of your practice is family law?

4. Are you involved on a local, state or national level with any mediation organizations?

5. Outside of your private practice, in what other ways are you involved in mediation? Are you on any statewide committees? Do you teach or train mediators? Have you published articles on family mediation topics?

I find that clients rarely ask me these questions. It may be that in this age of the internet, most of the answers to those questions could be found on the web or the mediator’s website. If the mediator does not have a website it may be useful to ask some of these questions to get an idea of the background and breadth of knowledge of the mediator. In general though, I find that other than the basic questions discussed at the beginning of this article, most clients are going to use the initial meeting to get a feel and a gut sense for the mediator.

The questions which you should be asking yourself are:

1. Do I feel comfortable with this mediator?

2. Do I feel like this mediator has integrity?

3. Do I feel like this mediator will be fair and balanced and maintain integrity in the process?

4. Based on what I have heard, do I have any concerns about the mediation process in general?

Ultimately, both parties to the divorce action need to be comfortable with the mediator. Sometimes one is comfortable and the other is not. You should feel comfortable that the mediator is skilled, knowledgeable, competent, experienced and has the temperament that works for you. While it may be tempting to base the decision on whether you feel like you can influence the mediator to take your side or like you more or believe in you more, the real test should be, do you feel this mediator is knowledgeable, experienced, skilled, able to maintain neutrality, professionalism and does he or she provide a safe space to discuss sometimes difficult issues?

Oran Kaufman 10/10/17 Oran Kaufman 10/10/17

Free Initial Consultation

In the mediation class I used to teach at Western New England University School of Law, I would ask the class how many would offer a free initial consultation as a mediator and how many would charge. I am always surprised that the breakdown is almost 50/50 of those that would charge and those who would offer a free consultation. I see a free consultation as crucial. Let me first explain what the free consultation session includes. During this session, which typically can last from as little as 10 minutes to 30-45 minutes, I explain the process, give the clients information about my background, my philosophy about mediation and why I do it and give clients an opportunity to ask questions about any of the above.

What the initial free consultation is not is a free meeting to dispense legal advice. First, as a mediator I cannot and do not provide legal advice and secondly, this meeting is limited to discussion of process. I do not get into substance with clients at this meeting.

Sometimes clients are shopping for mediators. Maybe they have the names of 2-3 mediators and they are trying to decide. I think that is great. Clients should feel comfortable with their mediator. After all, they are going to be engaged in discussions that can be very personal and likely to involved private information about money, children, health, infidelity and more. If clients are shopping I appreciate when they tell me so straight out. Due diligence is important.

A free consultation also allows me to make sure that this process is appropriate for this couple. It may be that for various reasons, I think mediation is not a good fit. Maybe there has been or continues to be domestic violence. Maybe they are not really sure they want to divorce and what they really need first is counseling. In any event, the first session allows me to assess the clients before me as well.

Sometimes, clients come to the first meeting and after my explaining the process to them, they have no questions. Often, I find that maybe they have been referred to me by someone or multiple people and they are pretty sure they want to begin that day. In many of those cases, we may start right then and continue with a paid session. Normally, I would have clients sign a mediation agreement and I charge them for whatever time is spent from that point forward. The first substantive session is spent with my getting basic information from the clients and finding out what they have talked about and what information we still need to get.

If potential clients call and they are not sure about whether mediation is right for them or their spouse or partner is not sure, I encourage them to schedule the free initial meeting. That's what it is for. As a friend of mine once said, "Information is power!".

So, if you are considering mediation, please call me to set up a free initial consultation.

Oran Kaufman 2/19/17 Oran Kaufman 2/19/17

Mandatory Mediation

The Hampden Probate and Family Court Mandatory Mediation Program: A Successful Collaboration between a Probate Court, Law School and a Community Mediation Program

In January of 2016 we began an experimental mediation clinic at the Hampden County Probate and Family Court. The Clinic was a collaboration between the Hampden Probate and Family Court, Western New England University School of Law (WNEU) and The Mediation and Training Collaborative (TMTC), a court-approved, community mediation center in Greenfield. The clinic built upon a pilot mandatory mediation program which had been running at the Hampden Probate Court since the fall of 2014, and was administered by TMTC. Under this pilot, the court referred 4 cases per month (2 cases on 2 separate dates). TMTC scheduled mediators to conduct the sessions, and conducted intakes and screening in each case prior to the scheduled date.

Starting in January 2016, for the duration of the WNEU winter semester, the court referred two cases per week to the clinic. The litigants were required to attend the clinic, which provided free mediation to the participants. I was the qualified mediator charged with conducting each session. Reaching agreement was obviously voluntary. I supervised two WNEU law students who had previously taken a semester-long family mediation class I teach at the law school. Although they had had a great deal of experience with role play mediation, this was the students’ first experience with “real life” mediation situations. In addition to participating in the court mediations which occurred every Wednesday, the students also worked with Betsy Williams, Clinic Coordinator with TMTC on the intakes for the cases. Prior to the mediations, TMTC called and spoke with each participant to give them information about mediation, screen for domestic violence or other issues that could make mediation inappropriate, and to obtain relevant background information for the mediation.

Although attendance was mandatory, theoretically the litigants could have attended the mediation, sat down for 5 minutes and ended the session and they would have technically been in compliance. In practice, not only did this never happen but in almost all the cases mediated, whether high or low conflict, the parties actively participated in the mediation to its conclusion. In addition, although we initially thought no-shows might be a problem, in fact it was never a problem. We had 100% compliance from the participants.

The clinic was a success on multiple levels and resulted in many surprises and unexpected results.

First, from the standpoint of the students, there is nothing like real world experience. As interesting and realistic as role-plays can be in class, they are no substitute for the real thing. Students experienced clients with strong emotions, clients with little affect or emotion, clients with mental illness, clients struggling with poverty, clients with high conflict and clients with seemingly no conflict, clients who were highly articulate and other clients who were difficult to understand. As the semester progressed, students were given more and more responsibility. Initially, they observed me mediating. Each Wednesday, following the mediation, we met for an hour to debrief about the mediations. The students were also required each week to submit a self-reflection paper with their observations about that week’s mediations. As the semester progressed, students took on a more active role, starting with making the opening statement to the parties, explaining ground rules, confidentiality, voluntariness etc. The students then progressed to information gathering and issue spotting. By the end of the semester, each week the students would alternate taking the lead as co-mediator with me under my supervision. There was a similar progression for students’ involvement with the intake process. They began by listening in on the intake/screening calls being conducted by Betsy (with full knowledge of their presence by the clients), then started providing some of the opening information, and ultimately were charged with conducting the intake altogether, with Betsy still on the call to fill in any gaps, as necessary.

One of the biggest surprises of the clinic was the fact that not a single participant ever objected to the students’ participation. Participants were gracious about the law students’ presence. At times it even felt that having the students in the room added some lightness to the atmosphere. The students’ presence almost seemed to calm the clients a bit. There were times when after we had reached an agreement and I had gone upstairs to check in with the clerk about the agreement, I came back and the law students and clients were talking casually. In one case, the mother was talking with the students about her very unusual pregnancy. Participants were asked to fill out evaluations after their session. In addition to the evaluations being almost universally positive, no mention was made in any of the evaluations complaining or negatively commenting on the students’ participation.

From an educational perspective, I believe the students received an experience that in many ways exceeds what they can get in a classroom. While I ultimately would have liked for them to have had more experience being the lead mediator, we also had to be mindful of the fact that this program was also for the benefit of the court and the litigants, and needed to uphold the quality standards for the provision of ADR services in a court-referred case. So, the education that the students received, including possibly the education of blowing a mediation completely (which has its benefits didactically) had to be balanced with the fact that ultimately, we were trying to help the clients settle their cases successfully. Nevertheless, the students experienced having to think on their feet and came face to face with the real-life problems clients faced. As is the case with experienced mediators, students learned how to balance being facilitative and directive when necessary.

From the court’s perspective, I can only assume that the program on many levels was helpful and successful. We had 13 weeks of cases with 2 cases per week. Although I was not keeping a tally of success and failure, my general recollection is that we helped settle approximately 22 or 23 out of 26 cases. In almost all cases, we were able to write up an agreement during the session and the parties saw the judge that afternoon and their agreement was approved or the agreement was approved administratively. In one case, a divorce action, the parties reached an agreement on most of the aspects of their divorce, we wrote up an agreement following the mediation, sent it via email to the parties and after a few minor edits, they had the agreement approved as part of their divorce. So, as a result of the clinic there were 23 fewer cases that needed pre-trials, case management conferences, trials, judges’ time, clerks’ time and the court’s time.

Much of the success was due to the choice of cases sent to the clinic by the judges and judicial case managers. The cases that did not settle often involved a client or clients who were extremely dug in. Or, in several cases we were dealing with a client who was likely suffering from mental illness or drug abuse. In one case, one client simply did not care, was not interested in engaging with his ex-partner and was absolutely unwilling to engage in the mediation in any productive way.

Many of the cases that did settle had certain similarities. They often involved young parents who were never married and had a young child together. Many of these cases involved two young people who simply were not good at communicating with one another. A common element was a new boyfriend or girlfriend and animosity between the parent and the other parent’s new partner. When given a chance to have a conversation in a safe setting, facilitated by a neutral third party, these litigants almost always resolved the issue which had brought them to court. Sometimes it was hard to even think of them as litigants. What they needed was a forum where they could be heard, where they were given full attention and where they had more than the five minutes they would receive in a busy motion session. Many times, the young parents just needed some ideas (some of which seemed so basic and commonsensical) about how to communicate with each other. “He never answers my texts;” “Her boyfriend is sending me nasty text” , “She is badmouthing me on social media.” Many of these cases involved the mediators helping the clients come up with communication protocols and ground rules.

Most of the cases we had were not complex financial cases or high conflict child custody cases. They were cases that probably never should have been in court in the first place but for the fact that as a result of poor communication, the parties had no other way to resolve their dispute. On the other hand, we only had 2 hours with the parties so the cases that were most amenable to mediation were cases where there was one or maybe two issues. Although we were able to help two couples reach a full divorce, full divorces were the exception. Most of the cases involved unmarried couples who had a parenting issue.

From my perspective as a full time private mediator, I had an opportunity to work with a population that I rarely see in my private practice. The vast majority of the cases involved unmarried parents, usually under age 30, most of them at or below the poverty line. I appreciated the challenge of working in unfamiliar territory including poverty, disability and mental illness. In addition, the vast majority of cases I handle as a private mediator are not already in litigation but rather result in an agreement which is then filed as a 1A divorce. Cases that are already in litigation have a different flavor and require different approaches which I had the opportunity to try out. As a teacher, I struggled with, but appreciated the challenge of balancing my desire to give my students experience and opportunity to succeed and fail, with my internal pressure to get the case settled for the court. Finally, this was the first time I had the experience of having people other than my clients seeing me actually conducting a mediation. It was therefore a wonderful learning experience to hear from my students what they observed me doing, what worked and what didn’t work.

Some things I learned and was surprised about:

1. If these cases were any indication, there are many cases clogging up the court system which simply do not belong in the court system or could be avoided with some early intervention. Some of these cases really did not involve a conflict. Litigation however was the only way that one party could communicate with or force some action from the other party. I don’t know how else to say it, but that’s just crazy.

2. In a few cases we struggled with what to do in the cases where one party was pro se and one party had an attorney. We opted for allowing the attorney to sit in on the mediation. In both cases where that occurred, we asked the pro se party if he or she had an objection to the presence of the other party’s attorney. In one case, the client and her attorney opted for not having her attorney in the mediation. When the attorneys did participate (even in the case where there were two attorneys) they were very helpful to the mediation. They helped give their clients a reality check when it was necessary. They were also helpful in explaining things that their clients were having difficulty understanding. As long the ground rules were established at the outset and followed, having one or two attorneys in the room was very helpful.

3. I was surprised that despite the fact that the mediation had been ordered by the court, there was no resentment of that by the clients (except in one instance). Again, with perhaps that one exception, when the parties walked into the mediation room, they were ready to engage in the process rather than complain about it. The concept of mandatory mediation is still a subject of debate in the mediation community, with some practitioners opining that mandatory mediation is a contradiction in terms. Before this clinic, I probably would have agreed with that sentiment. I have a different view now. Most of the people we saw were below the poverty line. Most of the parties we saw had at most a high school education. Private mediation was out of reach for most of the participants because of the cost. Community mediation programs with sliding fee rates may have been an option but I suspect that other than through court, most of the litigants would have had no access to or knowledge about these community mediation options. Ultimately, at least in this small sample, the fact that the participants were being ordered to attend got them in the door. They all participated, not a single participant complained about being mandated to attend and there was a high settlement rate for the program. This was after clear communication at the beginning of each mediation that explained that although they were mandated to attempt mediation, settlement was voluntary and they were in control of the outcome.

4. I was actually shocked that no one ever complained about the fact that there were three of us in the room (the two students and my myself). When setting up the program, I fretted over whether we should have both students in the room or just one student and me. No one seemed to be bothered by having three extra people in the room and in fact, as stated above, it may have helped calm the mediation in an unexpected way.

Conclusion

This particular program came about as a result of a perfect storm of sorts. A law school that was interested in and committed to providing its students with externships and real-world experience connected with a busy probate court with many pro se parties and a judge who is committed to the expansion of alternative dispute resolution in the courts in general and in the Hampden Probate and Family Court in particular. In addition, we were fortunate to be able to partner with a community mediation organization that has a lot of experience providing mediation services in the probate court, the administrative skills necessary to run the program and the flexibility to make the adjustments essential to make the program work. And finally, this was all combined with the willingness of the Chief of the Probate and Family Court who was prepared to give the program the go ahead.

In retrospect, while I cannot speak for others involved in the program, I recognize that I may have been somewhat naïve in structuring the program. That is, I agreed to plug the law school clinic into a mandatory mediation program before really understanding and exploring the pros and cons of the mandatory mediation model. As I have begun to read more about mandatory mediation programs around the country and about mandatory mediation in general, I realize that there were a number of issues that I did not consider. For instance, should there be sanctions for non-participation or should parties be entitled to opt out. Should cases referred to mediation be chosen randomly or be handpicked by the judge or court personnel? And how much information should the court have about what transpired in the mediation? This is in addition to the more philosophical and theoretical (but still important) questions like “Is mandatory mediation antithetical to the whole notion of self determination of the parties?” There are a multitude of scholarly articles on the topic of mandatory mediation. An excellent article that delves into many of these issues is Peter Salem’s article entitled, “The Emergence of Triage in Family Court Services: The Beginning of the End for Mandatory Mediation?” 47 Fam. Ct. Rev. 371 (2009). On the other hand, sometimes ignorance is bliss. Had we tried to address all of these issues in the first year, we may never have gotten the program off the ground. From a purely anecdotal standpoint, it appears that the clinic was a great success. As we enter our second year, we will start to address some of the above issues and others as they become or appear appropriate. For now at least, our experiment has been a success in almost all respects. It has benefitted clients (as reported by the clients), benefitted the courts by reducing caseload, and benefitted the law students by providing real world experience mediating.

Oran Kaufman 7/28/16 Oran Kaufman 7/28/16

Neutrality and Transparency

NEUTRALITY AND TRANSPARENCY ARE TWO CRITICALLY IMPORTANT CONCEPTS IN MEDIATION. WHAT DO THEY MEAN IN THE MEDIATION CONTEXT?

Maybe it is easier to start with what they do not mean. Being neutral is not like neutral on your automobile gear shift. It does not mean lack of motion, lack of movement or inertia. Neutral does not mean blasé or like a neutral color that blends and neutral is not vanilla. In mediation however, neutrality is key. Neutrality in mediation means that the mediator is not siding with one or the other party. Neutrality means that the mediator does not have a stake in the outcome except to insure that the process is fair, that the clients are fully informed, that they understand what they are agreeing to and ultimately believe their agreement is fair and reasonable.

I often distinguish for my clients the difference between the term neutral and unbiased. As much as I would like to be, I do not believe that as a mediator I am unbiased. I don’t believe any mediator can ever be completely unbiased. We all have our biases, worldviews, prejudices and leanings. A good mediator however will recognize those biases and not let them influence the direction of the mediation and the self-determination of the clients. Neutrality means not letting your internal biases guide or even affect the mediation. Neutrality means that both parties feel that you are on their side or that neither feels you are on their side or the other party’s side. Neutrality does not mean you will sit there like a lump on a log and not take action (i.e. be in neutral on the gear shift). To the contrary, neutrality involves hard work. It involves constantly gauging, assessing, measuring and figuring out what you need to do while remaining in the neutral zone. It is helpful to think of it like a light gauge on a camera. For a good photograph, you want the needle to generally be in the middle of the gauge- not too dark and not too light. To do that you are always making adjustments to the aperture, the speed, the film speed etc.

Transparency is the second concept which is critical to a successful mediation. For me, as a mediator, it is important that both parties hear and see the same information. It is critical that neither party fears that I have information from the other party that they do not know about. Finally it is critical that all information necessary for resolving the dispute is on the table and subject to inspection or questioning by both parties (or all parties if a multi-party dispute). There should be no secrets, no secret deals, no secret emails, phone calls or conversations. I like the word transparent because unlike the word “neutral,” it is what it sounds like. If you look through a transparent piece of glass, you see exactly what is on the other side. That’s how it should be. The mediation should not be opaque or even obscured. In order to make an informed decision, the clients need to clearly see everything in front of them.

Finally, the concepts of transparency and neutrality are inextricably linked in the following simple way. In order for the mediator to be neutral and to be perceived as neutral, there must be complete transparency. How is transparency achieved? When I conduct mediations I have the following simple rules:

1. I will not talk individually to either party unless at some point there is a decision by both parties that they want me to do so. (This is called caucusing and is a subject for another day).

2. I will not accept individual emails from clients. (Again unless there has been a specific agreement to do so although even then I am reluctant to do this).

3. I will not have individual conversations with either client (other than non-substantive calls like to schedule a meeting) again unless we have previously decided to do so.

4. Any information I receive from either client must be shared with the other party (again unless we are caucusing, in which case there is a mutual understanding that each party may ask me to keep certain information confidential).

5. Even before the initial consult, I am very careful to tell the person contacting me that I do not want to receive substantive information from him or her until both parties are in the room. Even if it may not necessarily affect me or the process, it may result in the appearance of lack of neutrality or lack of transparency down the road.

One of the keys to a successful mediation is to provide clients with an environment and space where they feel safe. This does not just refer to physically safe but also to creating a sense for the clients that they can feel safe talking about sensitive issues, and feel that the mediator is professional and taking care of their needs. Part of creating that safe mediation environment is creating mechanisms and a process which insures the mediator’s neutrality and transparency.

Oran Kaufman 3/6/16 Oran Kaufman 3/6/16

Mediation Misconceptions

I have often found it curious that what I see as the two biggest misconceptions about mediation are completely contradictory. I will first preface what follows by stating that this is not based on a qualitative or quantitative analysis of general public perceptions of mediation. Rather, this is based on my own experience with clients I have seen and spoken to over the last 30+ years of doing mediation.

Misconception #1: Mediation only works if you agree.

This one has puzzled me. In my initial consultation with prospective clients I often have heard people ask me if I thought mediation worked if they did not agree. I resist my temptation to be smart alecky and say Duh!?. But, in hindsight maybe it is not such an unreasonable question and may be more a product of the mediation profession’s failure to really properly explain how mediation works. In fact, many of my mediation clients are quite amicable and when I ask them why they are choosing mediation they say it is because they want to remain amicable. But remaining amicable is not synonymous with agreeing on everything. I do occasionally have clients that agree on everything and just need help getting through the process. Mediation is appropriate for them. They are on one side of the continuum. That is, in those cases the role of the mediator is essentially to help them get from point A (married) to point B (divorced). Notwithstanding their professed agreement on all issues, the role of the mediator is still to make sure that they have all the information they need to make an informed decision. I often tell people who come in and say they have everything worked out that it is still my job as mediator to make sure that their agreement is not based on some misunderstanding or misperception of the law or facts. People get this and are appreciative. I may not need to act as traffic cop or translator ( to help them hear each other) but I do play an important role. That is, I am helping the parties finalize their divorce inexpensively and with the comfort and confidence that a professional has helped them through the process and they have covered all the bases.

So is there a place for mediation in cases where people agree? Absolutely. First of all, they may think they agree on everything but you may point out to them issues they did not think to discuss. Tax issues are a good example. They may have decided to not transfer retirement accounts because they did not know that retirements can be transferred in a divorce without tax consequences. Or, they may not have realized that in Massachusetts, former spouses can stay on their former spouses health insurance at no additional cost (with some exceptions). In other words, in these cases, as a mediator one of your roles is to provide the couple with legal information that is critical to their case. This is a valuable role. The alternative is hiring two lawyers, which will inevitably be more expensive. Or, they can have a DIY divorce and risk missing something critical.

Misconception #2: Mediation does not work if parties disagree.

This puzzles me as much as the first misconception. If this is true, then what is appropriate for mediation? I think the source of this misconception is the notion that you have to be amicable to mediate. While having the goal of an amicable mediation is laudable, it is certainly not essential to a successful mediation. Mediation is particularly appropriate for people who do not see eye to eye. The alternative is expensive and protracted litigation and the result of such litigation, particularly if children are involved, is devastating and long lasting. Although working with amicable couples still takes training and expertise, much of the training for mediators revolves around working with families in conflict. Mediators’ training includes learning tools such as reframing, active listening, mirroring and modeling to help parties get unstuck. Watching a skilled mediator help a high conflict couple reach an agreement is a thing of beauty. This is particularly so when the agreement is multi-layered and addresses emotional as well as financial issues.

So, is mediation appropriate when there is conflict? Absolutely. Is mediation appropriate when the couple agrees on everything? Again, absolutely. Mediation is appropriate on a continuum which includes on one end, amicable couples who agree on everything but simply need help with the process, to couples who are high conflict and cannot talk to each other except in the mediator’s office.

Several cautions are in order here. First, if you (the mediator) tend to be a conflict-avoidant person, be alert to the following tendency. When a couple comes in and says we have agreed on everything, the tendency of the conflict-averse mediator is to think to himself, “Great, this will be easy and as a bonus, no conflict!” In fact, in these sorts of cases we mediators need to remain vigilant about our role of understanding how the couple has arrived at the agreement and are they operating with full and accurate information.

Secondly, there may be cases that are simply not appropriate for mediation. For instance cases where there is ongoing domestic violence or where one party has a mental illness that is severe enough to make them not competent to properly participate effectively. You as a mediator may be “hungry” for business and it may be hard to turn away a potential client but there are cases when in fact that would be the prudent and appropriate thing to do.

For the most part though mediation is appropriate on a wide spectrum of cases from cases where parties are extremely amicable to case where parties have a high level of conflict. Mediators wear multiple hats- traffic cop, problem solver, good listener, conveyer of information and coach. The misconceptions may be due to inaccurate portrayal of mediation in the media or it might be the product of our failure as a profession to adequately and accurately explain what we do. As “ADR” becomes seen more as “appropriate” dispute resolution and not “alternative” dispute resolution, this problem will disappear and a fuller and better understanding of mediation will emerge.

Oran Kaufman 11/2/15 Oran Kaufman 11/2/15

Arbitration vs. Mediation

In arbitration, parties make arguments and present evidence to a neutral arbitrator who makes a decision. Often the decision is binding. And, as was widely reported a the New York Times piece on arbitration, In Arbitration, a ‘Privatization of the Justice System’, many times arbitrations are binding and not appealable. Many contracts that consumers enter into every day from cell phone contracts, credit card contracts to contracts for services, now include binding arbitration contracts.

Mediation on the other hand, is not binding and does not involve a decision by the mediator. Rather, in mediation, the mediator facilitates communication between the parties and helps the parties reach a decision rather than making a decision for them. In mediation, the parties stay in control. Mediation is typically voluntary so the either party can stop at any time.

Mediation clients often ask me to advise them what to do. My standard response is that it is not appropriate for me as the mediator to do that. My job as a mediator is to make sure they have all the information they need to make an informed decision. With the information they need, clients are in the best position to determine what is fair. Obviously it is not always as easy as that. It is the mediator's job in those case to help the parties talk and listen to each other to arrive at an agreement that they both agree is fair.

Oran Kaufman 9/30/15 Oran Kaufman 9/30/15

First Mediation Session and Beyond..

First mediation session

At the first session I explain to the couple that I will give them a list of issues they will need to cover and will help them make their way through discussion of these issues. When appropriate I provide them with information that might be helpful in resolving their issues. I will also point out issues or concerns, such as the tax ramifications of their tentative agreement. Often these are things that they had not considered and might affect their agreement. I will sometimes suggest that they consult with someone else if there is an issue that is outside of my area of expertise (sophisticated tax planning for instance).

The first session varies depending on how many issues there are. There are occasions when people come in and have resolved almost all the issues. In those cases I make sure that their agreement is based on an understanding of the law and is based on complete information about the finances etc. In other words, in addition to making sure they have covered all the issues, my concern is primarily how they got to their agreement. Are either of them under any misconceptions about the law or facts?

If the parties have issues to be resolved, I start by collecting a lot of information about them and their family. At some point after the first mediation session, the couple will hopefully either have sent or brought in the financial information I have requested. This includes tax returns, bank statements, statements of accounts and a court financial statement. I will make sure each party has copies of the documents and each other's financial statements. After the fact gathering, we make a list of the outstanding issues and time permitting, we start tackling the issues. What documents are to be exchanged will be determined by the couple. One of the4 advantages of mediation is that the participants are not required to exchanged years of financial documents as they are if their file a contested divorce action. Some documents ( like the court financial statement) are required. I will go through all of that with the couple.

At the end of the first session, I will give the couple homework to complete. This includes filling out the court financial statement ( including instructions on how to fill it out properly) and going over any steps they may need to take before we meet again. Do they need to explore refinancing? Do they need to talk to a bank about what they qualify for if they want to refinance? Do we need retirement information? Do we need a house appraisal?

Subsequent sessions
How long will the mediation take? I hear this question at almost every mediation. The answer- it depends! It depends on the complexity of the finances or the parenting plan or on the number of issues or on the level of emotion between the parties. Typically, mediations take between 3-5 sessions from start to finish. This could be over the span of a month or over the span of two years. Sometimes, people need to take the time. Sometimes, they need to resolve the divorce quickly. Unlike court, participants in mediation are in complete control of the schedule. I encourage the couple to take as much time as they need. A common conflict that arises is that one spouse wants to move at a much faster pace than the other. This may be the topic of our first mediation session.

At subsequent sessions, we start to address the specific issues. I usually start by addressing any burning issues that must be resolved immediately. For instance, at the start of a divorce, one party may be moving out. There are concerns about how that will happen, who will pay the bills and what the parenting plan will be. The parties may need to work on a temporary plan before they arrive at a final divorce agreement. Once the immediate issues are resolved, both parties may be in a better position to begin to deal with the larger issues.

Unless there are emergency issues, I typically start by discussing the parenting arrangements and issues pertaining to the children and then move on to property division. I emphasize to the participants that all of the issues are intertwined and that they have the freedom to change their minds and should keep open minds until they have a comprehensive agreement.

I provide participants with a list of issues that will need to be addressed in their separation agreement and encourage them to do as much as they can outside of the mediation. Again, depending on the couple, some people are able to communicate with each other and accomplish a lot outside of the mediation room. Others come to mediation because it is the only place they can communicate.

Final session

Once the couple has arrived at a final agreement and has reviewed the separation agreement that I have drafted, we will schedule a final meeting. At this meeting, I will go through the agreement, the court papers I have prepared, the financial statements and the process for filing and what to expect at the hearing. I have found that this meeting is extremely important and helpful. Most people have not been to court before. The court has very specific requirements and if there are inconsistencies or errors in the paperwork, the court will reject the paperwork filed until it is done properly. Also, it is helpful for clients to know what to expect when they have their hearing.

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