Getting Through the 6 Stages of MediationGary Direnfeld, MSW, RSW
Getting Through the 6 Stages of Mediation
Mediation is not a single event, not a one-time meeting where magically issues are resolved.
No. Mediation is a process that occurs with very predictable steps. Understanding these steps to the process can help you manage through the process. Separated parents entering mediation may meet greater success understanding these steps and their role within.
- Pre-mediation: This stage may have been days to weeks to years. It involves the build-up of conflict, acrimony, aversive behavior and failed attempts at resolution, all before the final decision to attend mediation. This is all the issues that undermined your relationship and lead to its breakdown. Combined, the pre-mediation phase can create the impression that one or both sides will not negotiate in good faith; will undermine the process intentionally; will remain unmovable in their position. It is vital to appreciate that these are the typical conditions through which virtually every separated parent first enters mediation. If not for these conditions, you wouldn’t be considering mediation in the first place. The key is to not get deterred right from the get-go; to not let your pre-judgments color your view of what may possibly lay ahead.
- Agreement to Mediate: Somehow you have reached an agreement to enter mediation. This is where there is often a build-up of tension and positioning. One or both parents may seek to harden their position, entrench or anchor themselves hoping to gain an advantage in doing so upon entering the actual mediation phase. This can be scary and off-putting to some. It can erode confidence in the upcoming mediation. The challenge in this stage is to resist participating in defensive or offensive posturing. If/when confronted with posturing, the challenge is to resist responding. This is not the time or place to begin negotiations because those are frequently only bully-tactics deployed to muscle or scare you into submission. Ignore and look to others for support. Save your comments and concerns for the negotiating table. Don’t get inducted.
- Beginning stage: This stage can be quick or take some time. It involves the mediator getting to know you and your situation. It is fraught with triggering events – hearing things from the other side to which you take exception – sometimes extreme exception. You may feel the other side is lying, posturing, dramatic, trying to induct the mediator. You may feel outraged, scared or disillusioned. Keep in mind, most mediators weren’t born yesterday. Your mediator will understand that some clients enter the process ready to shoot down the other side right from the start. These are just opening salvos where one or both persons try to gain an upper hand, at times through direct or indirect intimidation strategies. Your mediator may give time for people to be heard without seeking to take sides. Letting someone be heard does not mean they are influencing anything. Indeed, through this process, the mediator is learning as much about people through what they do and how they communicate as what they actually say. Frequently, people’s delivery of information says more than the content delivered. If matters appear to get truly inappropriate, most mediators will intervene and reinforce rules for behavior and some will coach participants how to more respectfully deliver content. Little to nothing gets resolved at this initial stage of mediation. Often much time is directed to actually managing behavior. To the degree to which the participants heed rules and guidance for behavior, behavior subsides. The challenge in this stage is to manage oneself, not the other. To the degree to which one remains composed, bully-tactics lose their value.
- Working Stage: This is where participants finally get down to the substantive business. Notwithstanding the allegations, denials, projections, hardened views on outcomes, participants can exchange proposals to develop a plan to resolve their dilemma. Interestingly, people don’t necessarily have to admit anything untoward from their past. This may sound counter-intuitive, but what matters in mediation is what people may do differently on a go-forward basis. Given there is often little to no trust between participants, then strategies to monitor and assess adherence to plans can also be proposed. Consequences for failure to stick to agreements can be put in place as well. Given that both sides already know each others opening position, proposals that begin unchanged are not advised. Rather, proposals that show movement will be encouraged. Your mediator in hearing issues and proposals will also wonder about common short term and long terms interest and be curious about mutually agreeable road-maps for achieving those joint interests. This shift in the mediation process is all part of this working stage. While there may still be skirmishes, dust-ups and challenging moments, the real challenge is to focus on what you need to do to meet each others needs and interests while feeling comfortable that your needs and interests are addressed and met too.
- Ending Stage: Mediation formally concludes with the preparation of a Memorandum of Understanding (MOU). This is not a formal legal document but a document that commits in writing an understanding of what has been agreed to. Between participants who have gained trust in each other, they can implement the terms of their MOU on a friendly basis. If there is concern for trust or follow-through you can have the MOU formalized in a legally binding contract. To do so both must bring their copy of the MOU to their own lawyer for independent legal advice (ILA). Your lawyer will review the MOU, make sure it is understandable as written, make sure you understand the terms of the agreement and advise of any concerns arising or not yet addressed sufficiently. Parents are cautioned as to their choice of lawyer for this process. Some lawyers are apt to create issues where none may really exist. To that end, I suggest that parents seek ILA from a lawyer who has training in either or both mediation and collaborative law. Given both parents are satisfied with their MOU, then the lawyers will incorporate the MOU into a separation agreement which will be signed and notarized making it a formal legal contract. If issues are flagged, then parents can return to the mediator to clarify and/or resolve those issues.
- Post-mediation: This is where the rubber hits the road in terms of your agreement whether formalized in a settlement agreement or standing as a MOU. The agreement may be tested by one or other parent. There may be a need for post-mediation discussion and meetings to review adherence to the agreement. This doesn’t mean the agreement is wrong or bad. Some agreements take time to adjust to. There may be shifts in parenting responsibilities or the residential arrangement. Time to adjust is normal whenever there is change. The key is to use the provisions of your agreement to address concerns arising during the adjustment phase of post-mediation and to not simply throw away the agreement in the face of adjustment.
These steps are fundamental to most mediations.
The key though to most successful mediations has little to do with these steps. Key is your own deportment or behavior in the process. To the degree to which one manages emotionally and behaviorally competently at every stage in the process, you are likely to have a better outcome. If you are prone to angry, controlling or violent behavior, then do seek help to master those behaviors as they likely will interfere in the mediation process and undermine your attaining anything near your goals. Similarly, if you are scared, intimidated, lacking confidence, then also consider getting help to manage yourself in the mediation process.
As much as seeking to resolve issues with a former partner can be a dreadful thought, consider the alternative. Court.
Court too is fraught with the same or similar stages. However with court you have no control of the final outcome. With court an order will be imposed that one of you may find quite unsatisfactory. If that is the case, then what is the likelihood of adjustment and follow-through? In mediation you remain in control of the final agreement. There is no agreement until you both say so. As a result, while you may not be fully satisfied with the outcome, you will have crafted a resolution you can at least live with and that can have provisions for monitoring and consequences. Manage yourself through the stages regardless of what the other may do. Concentrate on your behavior, not the others. (Only proviso – dangerous or abusive or threatening behavior.)
Gary Direnfeld, MSW, RSW
(905) 628-4847
Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America and was the first social worker to sit on the Ontario Board for Collaborative Family Law.
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