Resolutions, Inc. > Collaborative Divorce: Building Bridges with Facilitation and Mediation

Posted on September 11, 2013


From Sherry Gorrell:

As mediators, for decades we have been assisting in the divorce process…bringing highly emotional couples together in the same room to create agreements and parenting plans focused on the children and honoring the transitioning family as a whole. Our skill set (developed after years of practice and a plethora of cases) is most likely one of compassionate and effective verbal and non-verbal communication, listening, acknowledgement and encouragement, and the knowing of when to ask the vital questions. We are facilitators of change, present and future focus, and process: creating a safe venue for openness, emotional release, understanding, common ground and interest based solution creation. I know this sounds rather idealistic…and yet if you have been mediating for over 5 years, you have most likely developed a 6th sense for this work. And most of us will acknowledge we’ve made lots of so-called mistakes, aka amazing learning opportunities! Many of us have also facilitated or mediated with families in crisis, businesses in transition, churches in change, work teams in turmoil; government agencies seeking solutions with the public, projects, employees, management and/or teams… We are comfortable with the dance of conflict knowing that it is normal and a part of the continual transition of life.

And yet historically, as a mediator who worked with divorcing couples, I often felt like an island.

I would draft parenting plans or agreements that the parents had created and many would not be signed or implemented because one or both of the attorneys discouraged their clients from signing. Once they started communicating with each other, I might also hear horror stories from the moms and dads about what they were going through legally, emotionally and financially through the divorce process. Other times there were questions of drugs, safety, abuse, mental and emotional issues…where I was walking a tightrope as a mediator and frankly wondering how these cases had been ordered into mediation. Sometimes it would be “inappropriate” to mediate…mainly because there was no one else in the room to provide accountability in these difficult situations. During these years, because of Rule 16j and perhaps my own insecurities, I did not usually feel comfortable contacting the attorneys; or getting a release to contact the therapists. And they did not normally contact me.

I remember asking at a conference, what would happen if the mediators, attorneys, counselors and/or child specialists could all come together to assist families through this life change. If it takes a community to raise a child…could it take a community to assist a struggling family through a transition into two homes?

Fast forward to a Judge’s Brown Bag in Boise over two years ago where the topic was Collaborative Divorce. One of the family law attorneys spoke of divorce litigator Stu Webb, who in 1990, in response to his many years of exhaustive highly contentious court cases, conceived the idea of bringing moms and dads and their attorneys all to the table at the same time…going through a process of goal setting and settlement discussions…removing the trial aspect of the legal process. If needed, financial experts, one or two mental health practitioners referred to as “coaches,” and mental health practitioners serving as child specialists would enter the process and join the others at the table. Everyone would sign a “Participation Agreement” that also included a clause on confidentiality. All professionals would agree they would remove themselves from the case if the clients chose to transition into litigation. All professionals were eventually required to take “Collaborative Divorce Training” and usually “Mediation Training.” As you can imagine, this process was most appropriate for more complicated cases where there were numerous financial assets, children and/or a desire (or incentive) to resolve differences amicably.

Blatantly missing from the team? Facilitators and/or Mediators.

The mental health practitioners serving as “coaches” could not practice as therapists. In fact the coaches described role in the collaborative process rang strangely familiar… help their client(s): determine and prioritize issues and needs, step through emotions, improve communication processes, help find common ground.

One of the challenges with this process? Conflict or tension would still occur. Not only between the family members, but often between the professionals…and most naturally between attorneys. And who’s role was it to facilitate the process, acknowledge people and ideas with more balance, and proactively mediate the issues?

Clear agendas and meeting goals were often not developed. Communication in and outside of the meetings would fall between the cracks because it was no one person’s role to take care of these very important functions. Who scheduled meetings between 4–7 people if the attorneys did not have assistants?

After years of law school and often decades of legal practice, advocating only for their client’s position is what attorneys instinctually know to do. And clients often expect their attorney and individual coach (if they have one) to be loyal to them and “in their corner.” This is a challenging tight-rope for the attorneys…if one attorney steps up and takes the lead in facilitating the meeting and the process, the other attorney and/or their client can feel threatened. If one of the attorneys is sympathetic and validating to the other client, his or her own client can feel threatened and insecure. And how many mental health professionals are comfortable or skilled at facilitating and mediating an entire team of people? It’s a very tricky dynamic.

In response, we are building a needed bridge to a new model of Collaborative Divorce… the Facilitator/Mediator model. I have now facilitated/mediated two Collaborative Divorces from beginning to finish with a team of 2 family attorneys, 1-2 financial experts, a QDRO attorney, and one case with a child specialist. (Except for the QDRO attorney, we have all been through a minimum of a two day Collaborative Divorce Training). One of these cases was extremely layered and complicated and both of these cases could have easily cost 2 to 3 times more than they did if the clients would have chosen traditional divorce and/or litigation. We have all learned a lot.

Because of these new insights, many of my client sessions are taking on a hybrid facilitation/mediation approach. If beneficial, I am asking the divorce attorneys to join in a final mediation session or they are inviting me in to facilitate settlement conferences. This has been very impactful and effective for the clients (and professionals) in every case.

How can a Facilitator/Mediator benefit the Collaborative Process?

  • Create Safe/Balanced Environment: Allowing attorneys to be advocates for their client, yet also an active participant in the team and what’s best for the whole.
    Use Positive/Goals/SUCCESS approach: Neutrally help the clients (and the professionals) get clear on what positive and successful outcomes they would like to create.
    Coordinate Process: Develop participation agreements and communication ground rules with team, schedule meetings, prepare agendas, facilitate meetings, e-mail team notes, create timelines and accountability for completion…keep everyone focused on the present and the future.
    Facilitate Interest Based Communication: This helps everyone stay out of positions and get to the heart of what their feelings, needs and requests are.
    Caucus If and As Needed: There are times it is very helpful to separate the parties and their attorneys and shuttle between them to get over a bump in the road and move the process along.
    Communicate Proactively With Clients/Attorneys/Team: Keeping everyone open, in the loop and “on track” (pre-brief/debrief with professionals at each meeting); be the “go to” person if a conflict emerges.
    Facilitate Meetings with Team: Maintain “balance” in the room, make sure all voices and concerns are heard, emotions are acknowledged, all possibilities and options are captured and looked at. Process is client win/win focused. Parents are empowered to create a successful outcome for both of them and their children!
    Focus on Children: Make sure children’s needs are addressed in order to create a successful two home family parenting plan. Bring in child specialist as the children’s advocate as/if needed.
    Mediate with Clients: Develop successful communication tools and processes as well as work through additional emotional triggers that might be coming up. Focus on creating a happy, healthy and successful future for parents and children.
    Facilitate/Mediate with Attorneys: As needed to bring a neutral voice to possible challenges, always focusing on a successful outcome for parents and children.
    Keep Professionals on Track: Follow-up with attorneys, financial specialists, child specialists…make sure action items such as divorce documents are being processed; timelines are being reached.
    Honor “New Beginnings”: Team will acknowledge completion of process and encourage feedback!
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