This article is from Angela Soper, a mental health professional and Collaborative Law Institute of Member based in Spring, working with a wide range of clients, including married couples and collaborative law clients seeking a divorce.
Recently, I had the mixed blessing of sitting through a mediation session with the mother of one of my clients, in an attempt to settle her divorce. I’ve worked with both the mother and daughter for almost two years, trying to help the daughter and father come to some form of a relationship. In the process, I got to understand the family dynamics and the reasons why the divorce had become so acrimonious. I would speak with the mother privately about how things were going, what was working and what wasn’t and so on.
She also shared that she was on her second attorney, and after going to court with her twice where her attorney didn’t show up, I gently suggested she find another, and referred her to my collaborative-trained attorneys who also do litigation. She was not open to collaborative law, and in truth, I wasn’t sure it could be done with so much water under the bridge. She took one of my recommendations and landed with a terrific, collaboratively-trained attorney, one who has an almost Zen-like presence. The calming effect that he had on her was almost instantaneous.
Now, fast forward to sitting in mediation for almost two days. Let me set the stage. The mediation was held in a great office with a kind staff who fed us a good lunch each day. The Zen-master lawyer had a gentle natured CPA who was an expert in tracing, the mediator was friendly and came across as confident and fair, the mother had brought a friend for emotional support, and I was there, offering a constant and hopefully calming presence to her, as well as providing ready information as to what might work best for her child in the situation.
This sounds pretty cozy … but it wasn’t.
Not once did the client get to talk with her soon-to-be ex, or his attorney, or to his accountant – and at no point in the process did representatives from both parties sit down with the mediator at the same time. The mediator talked to each of the clients in separate rooms, and copious notes were taken to keep the proceedings from becoming a game of “Telephone.” The one time I had the opportunity to talk to the dad and his attorney, they politely listened, but offered absolutely no feedback, not even one word apart from “Thank you.”
I’m glad that my client was able to at least do mediation – given the choice between mediation and litigation, mediation is definitely the more preferable option. But I was struck by the contrast between mediation and collaborative law.
At the end of a collaborative process, you still have a divorce, but it takes place in a setting where each person is heard, where the other attorney isn’t acting in an adversarial position, and where the couple shares a mental health professional and a financial profession as needed to help them arrive at a solution. It’s quite a different story from mediation.