Since the Supreme Court case of Troxel v. Granville has worsened the outlook for grandparents suing for visitation with grandchildren, family mediation is emerging as a better strategy in many cases. Mediation has four basic advantages:
- It will almost certainly cost less.
- Usually it is a faster process than court action.
- It is not adversarial in nature as lawsuits tend to be, with the result that family relationships should be improved rather than further strained.
- While court hearings are usually public, mediation is confidential, except for rare circumstances which a mediator can explain.
Basics of Family Mediation
Mediation can be either private or public. Private mediation occurs when family members voluntarily engage a mediator to resolve their conflict. Public mediation is usually suggested or required by a judicial system to deal with a family dispute that has already reached the court system. Since this article concerns mediation as an alternate to a lawsuit, it is primarily about private mediation.
In mediation a third party will help other parties to resolve a dispute. The interested parties must come up with their own resolution, with the guidance of the mediator. The mediator cannot hand down a decision.
The Role of the Mediator
Some mediators are attorneys; others come from a social work or counseling background. In both instances the role of the mediator is the same: to guide a discussion of the issues at the heart of the dispute, while ensuring a safe environment. Instead of looking backward to establish fault--an exercise in futility--a mediator helps participants look forward to seek workable solutions. Also, while participants will be discouraged from going off on tangents, mediators are trained to recognize and address related issues that may be impacting the main one.
There is no set of standard qualifications for serving as a mediator. Mediators who are paid with public funds, such as those working through the court system, generally must have certain qualifications, but almost anyone can offer his or her services as a private mediator. It falls to the participants to check credentials before engaging a private mediator.
What Will Happen?
Meetings usually take place at the mediator's office, although some will work at a family member's home. The disadvantage of a home setting is that it is not neutral ground. In some cases, a single meeting will suffice; in other cases, two or more meetings are necessary. Meetings usually last from two hours to half a day.
The mediator will discuss the ground rules for the session--what can and cannot be done or said. The parties involved will share their desired outcomes. The mediator will help the participants define the issues that block the desired outcomes and will help them evolve solutions. If an accord is reached, the mediator may draw up a written agreement.
Although mediation involves bringing parties together, participants can ask to speak privately with the mediator, known as a caucus. All participants have an equal right to caucus with the mediator.
Will It Work?
It can be a big hurdle just to get warring family members to agree to mediation. If the mediation is court-ordered, family members may be there in body but not in spirit. If, however, all family members want resolution, mediation has an excellent track record in helping them reach a workable solution. Because all parties must "buy in" to a solution, mediated agreements have a higher rate of compliance than those that are court-ordered without mediation.
In the case of mediation that is not court-ordered, the largest obstacle is getting all parties to agree to mediation. If you are a grandparent who has been cut off from contact with a grandchild, you will probably have to initiate mediation. This may mean contacting the other parties directly, although if the situation is very tense, a mediator may make the contact for you. Making it clear that you will pay the mediator can be a point in your favor. Even though you may be doing the hiring, the mediator should be someone that all parties can be comfortable with. Remember that a mediator is a neutral party and do not seek to hire someone that you perceive will have a bias toward your side. Entering the process with an open mind and heart is essential. It cannot be about winning or losing. It must be about what is best for a child.