Sunday, January 29, 2012

Real Mediator Questions

Hi Elinor

Something has come up recently in some seminars I've been to. At least twice, someone tried to make the point that it is actually sometimes an advantage to have a mediator who is not certified, because a non-certified mediator can give you his/her direct evaluation of the case, while a certified mediator cannot. Just wondered what your response was.

Thanks, Ms Commercial Mediator
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Dear Ms Mediator,

Someone made that up. Its a marketing tactic that is misleading.

No "mediator" should be giving a direct evaluation of a case. Every mediator can give their opinion on the range that a case is likely to fall into. (Make that range broad). If the parties want a direct evaluation of a case they don't want mediation, they want a process called Neutral Evaluation. (We talk about this on Day 1 of each of our training programs in the Conflict Management Continuum section.) You can provide Neutral Evaluation - and give the parties your direct evaluation of their case - but not as a part of the mediation process. If mediation ends in impasse you can change hats, go into Neutral Evaluator mode, and give them your opinion.

In my opinion it is unwise to mediate, in Florida, without being Certified. You have no judicial immunity if the case is not court ordered. And, you leave yourself open to legal malpractice issues because it will not be difficult to make the connection between being an "un-certified" mediator who is sitting there giving a legal opinion and the practice of law.

Best, Elinor

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Hi Elinor,

I am interested in your opinion on this hypothetical situation. In a family mediation, in separate session, the husband tells you he has hidden money. Is this considered fraud which is a crime and would not then be considered as privileged/confidential? Must a mediator disclose this to the other party? Or, should the mediator simply terminate the mediation?

Thank you, Elinor! Your opinion means a lot! Mr Divorce Mediator
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Mr D,

Hiding money from your wife is not a crime. So this is something we could NOT report to the police (or anyone else). The issue is misrepresentation. If the husband is misrepresenting his financial situation, the mediator cannot perpetuate the misrepresentation. So the mediator would have to either (a) convince the husband to come clean or (b) terminate the mediation. BUT, the mediator could NOT disclose to the wife or anyone else that the husband has hidden funds.

Best, Elinor

Friday, January 27, 2012

Parenting Question

Dear Dr. Robin:

So I let my 10 year old daughter Kayla out of my sight tonight, which is very hard for me, to go to the State Fair (45 minutes away) with her girlfriend and her parents. They swear they'll be home by 9:30. They are not home at 10, I call the friends house and the mom answers. She didn't go, and is in tears worried that something happened. She tells me her husband took them and didn't bring the cell! WTH! First off I would have never let her go if I had know the mom wasn't going and to top it off, no cell phone? My husband just went off on the mom. At 10:15 my daughter walks in. We went off on her too but it's not her fault. Aside from getting her a cell phone - what should we do???

Kayla's Mom

My response

Dear Mom,

This is a two-parter. First part is the anxiety of a parent. What can we do with the fear and out-of-control feeling that makes us act out like lunatics sometimes? Focus your breathe, tap, meditate, reach out to others, journal, take some action, etc. Being a parent is scary, we have to find the delicate balance between letting go and protecting.

The second part is the friend's family. In the words of branding expert Kellie Kuecha "How you show up here, you show up everywhere." This is part of the father's "brand," its how he shows up in life. Any of us could forget our cell phone but if I did I wouldn't be almost an hour late. Considerate is not a part of his brand. He has proven (IMHO) to be irresponsible, passive-aggressive, or both. And, clearly the mother cannot be counted on to counteract his tendencies.

What happened yesterday doesn't really matter now (its done) so lets change the focus to the future. Its up to you to set the boundary. I would discuss it with Kayla. Tell her your concerns and see what she says. Maybe the rule should be that she can go to their house but not leave with them so if there is a change in plans she calls you to pick her up. Whatever you two decide is OK but at this point I believe that in order to get her to follow the rules she has to co-create them. Remember, in this case, she is not to blame. Make that clear to her, she was not the driver last night. That's why its important to make good choices about who we get in the car with. And, let her know that there will be many more decisions that the two of you will have to negotiate together as you spend the next 10 years finding the delicate balance between letting go - so she can become her own wise woman - and protecting her while she learns how.

Happy trails, Elinor