Mediator Role: Looking Out For Parties’ Best Interests?

Posted on June 13, 2011 by Anthony Matthews
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There’s an article this week at “Walletpop” (an AOL news website) entitled: Getting Divorced or Separated? 7 Financial Mistakes Not to Make. Mistake #1 as presented is: “Thinking that a mediator will protect your financial interests”. The article suggests that during divorce mediation, some participants assume mistakenly that the mediator will always look out for their best financial interests.

The article also states (quoted from a CPA interviewed for the story) “The primary goal of the mediator is to get a settlement”.

Taken together, these statements imply that a mediator’s goal is to succeed in reaching a settlement at any cost, regardless of the best interests or one or either of the parties, and specifically their financial interests. This is what I want to talk about today.

Taking the second item first, the global practice of mediation these days follows certain well-established tenets. One of these tenets is NOT that the mediator MUST reach a settlement, or as I prefer to call it, an agreement. In fact, the mediator knows that the outcome of any mediation is either that an agreement will be reached, or that an agreement will not be reached, the latter because of an impasse, or because one of the sides or the mediator terminates the mediation for any reason, or for some other reason.

In practice, it’s become apparent that for many disputed issues, a mediated agreement works better than any of the options. Mediators also know this, and they encourage the parties to seek solutions. But not at any cost. For any mediator to push for an agreement simply for its own sake and at the expense of one of the party’s interests is wrong, unethical, and not how a competent mediator would work.

Turning to the issue of finances, it’s another tenet of mediation that a mediator cannot and should not offer any form of professional advice to the parties, including legal, financial, or psychotherapeutic. Parties should always seek their own independent advice in these areas, so that they know what their negotiating parameters are within the mediation. The mediator cannot and should not be expected to be able to quantify such issues.

To put it in mediation “jargon”, the mediator is there to help each party see how a mediated solution would compare to the alternative of not reaching agreement. Such alternative is known as the BATNA, or “Best Alternative to a Negotiated Agreement”. However, the specifics details of the BATNA, especially quantification of dollar amounts and likelihood of success in litigation, are something that the mediator can not know. This is information that the party needs to have obtained from their legal or financial professional, to bring to the mediation as information supplied. The mediator can then work with the parties to help them craft an agreement based on actual information.

As a footnote, knowing that a client is headed to mediation, a good attorney will prepare his client appropriately, making sure the client is fully armed with all such information and ready for a cooperative negotiation. The attorney knows that mediation may have a prompt and surprisingly palatable result if the client is fully prepared for the process.

 

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  • http://www.markbaeresq.com Mark B. Baer, Esq.

    There are some aspects of this article with which I agree and others with which I disagree.

    I agree that one of the mistakes people make when considering mediation is “thinking that a mediator will protect” their “financial interests.” The mediator is not hired to protect any party involved in a dispute. Rather, the role of the mediator is to remain neutral and assist the parties in reaching an agreement. In every relationship, one party tends to be more dominant than the other. Without involving lawyers in the mediation process to prevent a power imbalance, the agreement may not be fair and equitable. In fact, it is often the dominant party who tries to convince the weaker party to mediate the dispute WITHOUT LEGAL REPRESENTATION. I actually wrote an article about this issue for my column in the San Gabriel Valley Psychological Association’s Newsletter in September, 2009. The link to that article is as follows: http://www.markbaeresq.com/documents/sharp@lhmp.com_20110428_114931.pdf.

    I disagree with the statement that a mediator cannot be evaluative. The article states, “However, the specifics details of the BATNA, especially quantification of dollar amounts and likelihood of success in litigation, are something that the mediator can not know. This is information that the party needs to have obtained from their legal or financial professional, to bring to the mediation as information supplied.” There are different styles of mediation, one of which is evaluative mediation. For example, if parties to a family law dispute hire me to mediate their case, I am able to be evaluative because I am a family law attorney. In fact, they may very well be hiring me as the mediator because they want me to be evaluative. I also wrote an article on the different styles of mediation for my column in the San Gabriel Valley Psychological Association’s Newsletter in January, 2010. the link to that article is as follows: http://www.markbaeresq.com/documents/sharp@lhmp.com_20110428_114956.pdf.

    Please note that even if a mediator is capable of being evaluative, he/she must remain neutral and cannot give legal advice. The mediator’s job is to assist the parties in reaching an agreement. Even if an agreement is unfair to one of the parties, the mediator fulfilled his/her job by getting the parties to reach an agreement.

  • Anthony Matthews

    Mark, thanks for your insightful comments. With reference to the original article, your comments underscore the point made there that some parties to a divorce mediation may believe mistakenly that their mediator is acting in an evaluative role, when in fact they are not. It’s so important that the participants understand what role the mediator plays, especially when those parties not familiar with the process of mediation, and the mediator may have been assigned by a court, or chosen by the parties without specific expertise having been evaluated. As you say, in your case you are often hired specifically because of your expertise and you therefore act in an evaluative role, with the specific assent of the parties. It’s crucial that the mediator makes her/his expertise and scope of her/his role clear to the parties in either case.

    I’ve enjoyed your posts and articles, by the way, one of which is linked in the sidebar here, and look forward to learning more from your expertise. Thanks for the time you take to contribute to the community.