The Problem with Partial Agreements at Mediation
It appears to make sense to try to get the parties to agree on at least some if not all the terms at mediation. The usual areas in play are parenting decision -making (formerly custody), parenting-time (formerly access), child support, spousal support and equalization of net family property. When I first started my mediation practice, I strove for early settlement of the lowest hanging fruit, to get the parties into settlement mode, both to encourage settlement and for them to understand that deals were there to be had.
A year or two into my mediation practice, I convened mediation where all the above issues were in play. Because it was mediation, I relied upon counsel to let me now whether there were any power imbalance issues of concern, and none were brought to my attention.
The parties were a young couple. The wife was very pleasant and sweet. The husband seemed pleasant enough but had an edge to him. I suggested we start with financial issues, since they seemed uncomplicated, and I wanted to get the parties into settlement mode. The husband immediately got quite vocal and insisted that we deal first with custody. There was no objection from the wife or her counsel, so we did just that.
There had been no request from counsel for the wife that we caucus so sessions were held together, so I saw how the negotiations proceeded, with the husband making demands the wife acceding to them. After a few hours going back and forth a deal was reached that the parties would share joint custody.
Joint custody involves the parties collaborating with making decisions in the best interest of the children. It was apparent to me that the husband would make the decisions and the wife would eventually relent under pressure exerted by him; however, she agreed to share joint custody and the deal was accordingly reduced to writing.
Since we had more hours left in the day to proceed, I then proposed we deal with financial issues. Thereupon the husband stood up and stated he had no further need for mediation services and he and his counsel left.
I learned a valuable lesson that day. As mediators we must be alert for power imbalance, and even when there is assistance from counsel, we must be careful to explain the deal to the spouse who tends toward passivity in the face of the dominance of the other. Not all counsel are of equal strength. Not all counsel are even prepared to stand up to pressure exerted by a dominant spouse on the other side in order to shelter their client from it.
Some would say that particularly when there are counsel present, the job of the mediator is merely to facilitate a deal, not look behind it to see whether it is in the best interest of the parties or the children. I’m not of that view, and that case still haunts me to this day. I didn’t do everything I could to ensure a level playing field, I allowed the husband to not only bully his client but also her lawyer, and to an extent permitted him to take over control of the mediation.
When faced with the same situation, I would set the agenda, utilize break out rooms (even if only virtual), and take a more hands on approach. I doubt I would have walked away from the mediation on the grounds that there was a clear power imbalance, since I felt confident that I could create a safe environment in which the parties could negotiate, but I would have determined from discussions with each of the parties the overall agenda of each and made sure that nothing was finally resolved, unless everything was finally resolved.