Pull Up a Chair and Meet the Mediators

By Laura Melton Tucker, April 8th, 2009

DiagramsAh, facebook! I recently reconnected with an old college friend who was excited to hear I’m a mediator. Her husband’s law partner, she explained, had recently retired to a lucrative second career as a divorce mediator. “He’s making a killing!” she enthused. “He’s pulling in $8,000 a day and he’s booked every day of the month!” “How’s it going for you?” she asked. I answered, “We do things differently in Iowa.”

Our conversation got me thinking about the economics of a $1,000 an hour mediation practice. My imaginary farmers from my last blog entry couldn’t afford those prices! One of the selling points of mediation is that it’s a less costly route than litigation, so, there must be an explanation. And, there is. But we’ll save that point for a quiz at the end!

There are three types of mediation that are worthy of a brief explanation in order to understand how the type of mediation practiced by the high powered L.A. attorney relates to the transformative style practiced by most family mediators. These types are the directive, facilitative and transformative (or elicitive) models, pictured in the diagrams above.

In the directive model (middle diagram) the parties “caucus” in separate spaces (frequently with an attorney at their side) while the mediator moves back and forth between them. This approach keeps the parties apart, often because the situation is volatile or contentious. Frequently the mediator is an attorney or retired judge with subject matter expertise, because her job is to come up with a settlement based in part on what she believes is fair. This mediation model is usually “open” (see the previous blog for an explanation of this term) since the mediator will report her recommendation to the judge based on what is said during mediation. The big chair in the diagram represents the mediator, who shoulders a lot of responsibility for the outcome.

Notice in the facilitative diagram (above left) that the parties are in the same room. The mediator is at the head of the table because the parties are talking to each other through the mediator, who facilitates the conversation. In this model the mediator guides the parties through a discussion of the conflict and moves them toward agreement. The mediator’s chair in the diagram is bigger than the participants’, for she will play a large role helping the parties overcome their conflict in order to reach a resolution. In this model the conversation is either open or closed, depending on what the parties agree to ahead of time.

Finally, in the transformative (or elicitive) model (above right) the table is round. The mediator sits beside the participants, on equal footing. In this model the mediator isn’t guiding the process toward an end, rather the process itself is the end. The people in conflict are the experts on how to solve their problem. They have the ability to transform their interaction by talking, listening and understanding one another. When this happens, resolution follows. This model is almost always closed. The transparent process empowers the participants to change the way they see and respond to the conflict . What they learn in the mediation process, doing the work themselves, is of value to them when or if future problems come up.

How do these models translate to real life? Almost every mediated situation draws on elements of each style, though most mediators have a preference for one over the other. Transformative mediation is gaining momentum as the most widely used style because of the control it gives to clients to shape both the process and results. The Johnson County Small Claims Court uses this style in its free mediation service. (More on that in another blog.)

So now it’s quiz time. What mediation model does the retired L.A. lawyer friend of a friend use? If you said the directive, you win. This model might make particular sense in a high stakes celebrity divorce with millions to be divided. The clients mediate to keep their affairs private. The mediator acting as a “surrogate” judge, with a high level of subject matter expertise, becomes a bargain compared to the financial and emotional costs of a lengthy, public trial. Even at $1,000 an hour, mediation in this circumstance seems like a good deal.

So what’s the takeaway? I’ll let my imaginary farmers from the previous blog have the last word: “Glad this is Iowa and not Hollywood!”

Diagram courtesy of Steve Sovern

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