“If you and your spouse aren’t speaking to one another, can you still mediate your divorce?”
Mediation is a dynamic process of cooperative interaction leading to the resolution of conflict. It is facilitated by the assistance of a third party, not directly involved in the dispute. A reasonable, yet perhaps only hoped for, outcome is the building of trust between parties in the formation of an agreement. Trust is often forged from good-faith negotiations that follow direct communication between parties in the context of mediation. That two people are not speaking seems at first blush counter-productive toward the development of trust, let alone the creation of any meaningful resolution to their issues.
There may be several reasons that couples are no longer talking to each other. If, for example, the silence follows an ongoing pattern of domestic violence or other forms of abuse, the usual answer to the lead question is no. Often, though, the pain and suffering people experience during separation is so raw that the disengagement associated with silence provides the only comfort possible. In such instances, perhaps mediation can provide couples with an appropriate means of separating. This of course presumes that all parties agree to participate in a willing fashion.
Practitioners of mediation always promote respectful and effective dialogue. If the mediator is unable to persuade the parties to talk to each other directly, there are other strategies available to help the couple. One method of helping people to resolve their issues in mediation is with the use of caucus meetings. The mediator engages the individual clients in alternating one to one sessions. The notion of carrying out mediation entirely in caucus is controversial and carries with it some inherent problems. The mediator must always be vigilant about ensuring the presence of a platform for negotiating in a fair and balanced way. The lost opportunity to view the interpersonal behaviour between the parties omits an important component of the mediator’s screen for power imbalances in the couple’s relationship. Perhaps, even the appropriateness of continuing the case, may be overlooked. It is also very difficult to fashion creative and more effective solutions to the problems at hand without direct dialogue between the parties.
Consider the implications, however, associated with a case involving a couple trying to develop a comprehensive parenting plan for their children without any form of communicative interaction. No doubt, it would be preferable for parents to make decisions about parenting responsibilities through direct contact rather than using an intermediary. The option of mediation is an opportunity to participate in a cooperative forum, albeit somewhat restricted, in such instances. No dialogue at all save for the competing demands often found in court motions, is not the next best alternative for people who presently do not speak to one another.
David Klegerman, B.A., CHRP, Acc.FM (OAFM), FMC Cert. CFM is an accredited family mediator and certified human-resources professional, specializing in helping high-conflict couples work through all aspects of separation.