I just attended the Annual Conference of the New York State Council on Divorce Mediation (NYSCDM) where I heard the keynote speaker, Forrest (Woody) Mosten, discuss “47 Things” every mediator should know or do. One of those “things” was to have a preliminary private planning session with each of the parties prior to the first joint session with the couple.
Before hearing this suggestion, I had always thought that one of the primary purposes of divorce mediation was to teach a couple to communicate better so they could resolve their own disputes in the future. Separating them during the mediation process did not seem like the way to accomplish that goal.
But Woody gave me something to think about. If a couple comes to a divorce mediator for help in reaching an agreement that will allow them to end their marriage without becoming engaged in a costly and hurtful court battle, why not use every tool available to help them achieve that goal? And if a private session increases the chances of achieving that outcome, why not use it?
The reason why Woody feels that a preliminary private planning session is so valuable is that these sessions allow the mediator to:
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Establish rapport with each party
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Learn facts that might not be disclosed in a joint session
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Deal with emotional and relational concerns that might be preventing an agreement from being reached
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Help each of them prepare for the first joint session
In short, it is part of the “education” process where he teaches people how to mediate.
In order to encourage each person to fully express his or her concerns, ideas and proposals, the conversations that take place during these sessions are confidential. In addition, Woody teaches each person how to present these proposals and ideas in a way that increases the chance of them being accepted by his or her spouse.
So, what do you think? Should a mediator routinely use preliminary private planning sessions in a divorce mediation? And if so, what are the concerns that need to be considered while doing so?
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Those are all great reasons for preliminary sessions. An even more important reason is that it provides a opportunity for screening and a conversation about safety. Emotions and conflict can escalate during a divorce mediation, even between spouses who have no prior concerns about self destructive behaviors, power imbalance, or abuse. It is critically important to establish a safe place in which those concerns can be discussed openly.
This sounds like a useful tool in preparing clients to mediate. I often wonder that I may be missing a key concern of a spouse who will not raise certain issues during mediation for fear of “rocking the boat”. Preliminary private planning sessions would certainly provide a comfortable forum in which to discuss emotional and/or relational concerns. However, as a Mediator, the idea of keeping certain factual information confidential is unsettling. What happens if a spouse provides factual information “in confidence” that the other spouse needs in order to make an informed decision through the mediation process? As a mediator do we not have an obligation to advise the other spouse?