In my state, retired judges are misleading the public about what mediation is and giving mediation a bad reputation. I suspect they are doing the same in many other states and provinces. Although they say they are mediating, they are acting in ways that violate the ethical standards for mediators approved by the American Bar Association (ABA), the Association for Conflict Resolution (ACR), and the Academy of Professional Family Mediators (APFM).
Because I live and work in Virginia, I will mention that the judges are also violating the Standards of Ethics and Professional Responsibility the Supreme Court of Virginia has provided for court-certified mediators.
All of those organizations specify that the three characteristics listed below are included in the definition of mediation. According to ACR, “Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision-making by the parties to the dispute.”
Quotations in this article are taken from ACR or APFM. Links to those sets of standards on the Internet appear at the end of the article.
Characteristics of Ethical Mediation:
1. Self-Determination, Which Includes Voluntary, Un-coerced Decision-Making
The parties to the dispute are free to choose how to settle their dispute. Each party makes free and informed choices about process and outcome. If your judge “mediator” is telling you what you should agree to, then he is not mediating. If your judge “mediator” is bullying you to agree to a settlement proposal, then she is not mediating. If the message is “We’re going to stay here until you settle this,” then the judge is not mediating.
2. Impartiality of the Mediator
“A professional family mediator shall conduct the mediation process in an impartial manner.” If your judge “mediator” is taking one person’s side with regard to custody, visitation, who gets the marital home, or any other matter, he is not mediating.
3. Procedural Fairness
“A mediator shall conduct a mediation… in a manner that promotes party participation, procedural fairness, party competency, and mutual respect among all participants.” If your judge “mediator” is preventing you and the other party from communicating with each other by keeping you in separate rooms and controlling the flow of information from one room to the other, then she is probably not mediating. Here, too, telling you what to agree to or bullying you is not acceptable. If your judge “mediator” is insisting that you stay in session after more than 12 consecutive hours of meetings (with breaks for food) and past midnight, when you are too exhausted to think straight, then he is not mediating.
What Retired Judges Really Do
Retired judges supervise high-pressure settlement conferences. They let you and your lawyers argue your case and present your evidence, let the other party do the same, and guide you to the settlement they would order you to accept if they were on the bench deciding the case. One lawyer told me “high-pressure settlement conference” is too gentle a label for what they do. In that person’s opinion, the judges issue “directed settlements.”
It’s OK for them to do that. The service they provide has value. Sixteen consecutive hours working with a retired judge and having some degree of ability to say no to a settlement proposal is better for some people than paying the full emotional and financial cost of going to trial. But it is NOT mediation.
Why This Matters
According to ACR, “Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements.” Real mediators treat both parties with respect and help them communicate what matters to each of them and why, hear each other, brainstorm solutions, get creative when necessary, and think about long-term consequences of their decisions. Real mediators help the parties make voluntary, well-informed decisions without pressuring them to move in any direction.
The ACR and APFM ethical standards serve three primary goals: “to guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes.” To the extent that lawyers and members of the public believe that what retired judges do when they say they are mediating is in fact ethical mediation, the judges are doing a great disservice to the public. They are misleading people about what mediation is and undermining public confidence in mediation.
That is really a shame, because real mediation is the best approach to divorce for most families. Mediation costs much less than working through courts and lawyers, gets everything settled sooner, and keeps emotional distress to a minimum. Mediation leaves you and your soon-to-be-ex in control of the decisions for your family.
Footnotes or References:
The ethical standards for mediators mentioned in this article are available online as follows:
Virginia L. Colin, Ph.D is a professional family mediator, the Director of Colin Family Mediation Group LLC, and Internet talk radio show host of “Family Matters” on VoiceAmerica.com. Formerly a research psychologist, she has been providing family mediation services since 1999. Dr. Colin has written two books: “Human Attachment” (1996) and “The Guide to Low-Cost Divorce in Virginia” (2014). She has been a foster parent, a married parent, a divorced single parent, and a remarried stepparent.