Last month I attended 40 hours of very excellent Family Law Mediation Training conducted by Judge Nan Nash, David Levin, and Laura Bassein, for the University of New Mexico. Although I have been mediating for a number of years, including mediating family law matters for the past two years, I benefited greatly from the training. In particularly, I was struck by the old adage that "you don't know what you don't know," and the notion that we as mediators need ongoing and comprehensive training, with its attendant role plays, to stay sharp and continue to grow as mediators.
1. Conducting productive, party-centered mediation requires a number of unique attributes and interpersonal/ communication skills:
- non-judgmental curiosity;
- detachment from the outcome;
- active emotional engagement;
- an ability to model care and good communication;
- an ability to recognize "nuggets", or hints regarding the parties' underlying interests, fears and concerns;
- an ability to identify the right time to toss that nugget back to the parties to address;
- a sense of the appropriate time to use "bridging" phrases to help demonstrate the parties' similarities of interests;
- the temperamental ability to handle conflict, which may include a number of different tacts:
- acknowledging it;
- reflecting to the parties what you are observing;
- asking if there is something to talk about there, or anything the parties would like to change; and/or
- asking the parties what their child(ren) know about the conflict; and
- an ability to recognize and address your own biases as a mediator.
2. There are also a number of concrete tips or tricks that should be incorporated:
- clear your head 10-15 minutes prior to any mediation, to focus on this case and these parties;
- don't assume anything, including regarding the parties options or interests;
- VALIDATE, VALIDATE, VALIDATE--if an issue keeps coming up it will be because the speaker has not felt sufficiently heard or acknowledged;
- scan the non-speaker to gauge their reaction and body language;
- don't forget or ignore the non-speaker, and expressly let him or her know he or she will get a chance to talk next;
- remember to check in with the parties during and in between mediation sessions to gauge how well the process is working for them; and
- encourage the parties throughout mediation to consider the child's best interests as distinct from their own.
3. Finally, there are a couple of "big issues" or ideas to be aware of, both procedural and stylistic:
- Always meet the parties where they are.
- This involves recognition that the parents goals, interests or ultimate agreement may not be ideal or even nice.
- However, remember that kids love, want to be and are stuck with their parents, so how ever the parents make their co-parenting relationship work will ultimately be in the children's best interests.
- Beware of the unauthorized practice of law.
- Although a mediator may give out legal information, a mediator may not give legal advice, whether a lawyer or non-lawyer.
- Accordingly, mediation agreements should be in the words of the parties, and should not include legal terms of art that require legal advise to explain, and the mediator should encourage the parties to consult legal counsel.
- However, it is always appropriate and necessary for a mediator to reality check the parties on the terms of the agreement--is this doable, does it meet the stated goals and interests--and also to critically and objectively review the document for clarity, consistency, and ease of enforceability.
- Nonetheless, be aware that a court will not sign off on a custody agreement that it finds does not serve the best interests of the child, and a mediator does not serve the clients well if mediation results in an agreement that a court will not or cannot enforce.
- Use open ended questions to balance this statutory requirement against party autonomy and the prohibition against unauthorized practice of law.
- Questions may do well to focus on the statutory and developmental factors, to get the parents to think about best interest from the perspective that the judge will likely assess any agreement.
- Statutory factors include: the wishes of the child; the wishes of the parents and/or custodians; the established bonds with each parent; the relationships with others involved in the child’s life such as siblings, relatives, teachers, friends, counselors and coaches; the child's adjustment to his home, school and community; and the mental and physical health of all individuals involved. Additionally, if the minor is fourteen years of age or older, the court shall consider the desires of the minor as to with whom he wishes to live before awarding custody of such minor, although the child's desires shall not be determinative. See Mexico Annotated Statutes 40-4-9, 40-4-9.1.
- Additionally, best interest may be strongly affected by the developmental needs of the child, which vary as they age. For instance, an infant or very young child has attachment needs that must be met to promote the development of a healthy, well-adjusted individual. As such, some mental health professionals assert that overnight visits are not in an infant's or young toddler's best interests
If you are interested in family law related mediation, arbitration, advisory consultation, or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
