It's All About the Clients (Or it Should Be)

Today I faced a novel situation in a divorce mediation. After getting to know my clients fairly well over the last few months, we are now beginning to enter the last phase of the process, and their divorce will soon be final.

While I felt a sense of accomplishment that we were drawing their case to a close, and that the marital settlement agreement was equitable, and well-written, it dawned on me that today might not feel quite the same for the other people in the room. While one party was visibly smiling, and quite calm, the other had started to cry quietly. In all my efforts to be fair, listen to my clients, and honor their wishes, I had forgotten that this conclusion marks the end of their marriage in a concrete way, and was likely to cause pain. Disappointed in my own lack of empathy, I offered what comfort I could, but it was a sobering moment, all the same.

I learned a valuable lesson today, and I will try to remember it for the future: it's really not about the mediator - it's about the clients. I did my job, but that was no more than was expected. I also needed to be looking out for the emotional needs of my clients. As the mediator, I really shouldn't dwell on my own work, or seek approval; rather, my objective should be to offer comfort where I can, while providing highly competent services, and giving my clients the respect and attention they deserve.

Constructing an Effective Agreement in Mediation

What makes an agreement effective? What can the mediator include that will help to ensure that the agreement is lasting, realistic, and appropriate? What should parties seek to include to help them implement the agreement in good faith?

While each mediation is different, a good rule of thumb to follow is to make the agreement as specific as possible, so the parties know exactly what responsibilities they have accepted, and how they are expected to act in the future. Specific means including dates, times, exact amounts, methods of exchange, potential remedies, and a host of other concerns that may seem like overkill in the mediation.

However, including these kinds of details minimizes potential confusion in the future, and also makes it difficult to disagree over the meaning of certain terms in the agreement later. For example, in a divorce mediation, it's very important to specify how much support will be paid, by whom, at what point each month (every second Tuesday, or bi-weekly?), and by what method (electronic transfer or check?). These are the sorts of points that can ruin a carefully crafted agreement, simply because the parties have no clear way to move forward.

It behooves the mediator and the parties to consider exactly how the agreement will work after the mediation is over - after all, the mediation is supposed to be a forum for the resolution of issues, not the creation of new ones. A tailored, specific agreement helps to curtail future problems by clearly addressing exactly how the agreement will be implemented, and how each party will abide by the terms of the agreement.