I’m really curious about this view of mediation as “inherently adversarial.”
There are many different styles for mediations. We have one of the leading
transformative mediation practitioners in our area, Dan Simon. I would put
transformative on the farthest end of the spectrum from litigation. At the
other end within mediation, you can find some retired judges who are much more
directive.
I know many collaborative professionals (including me) who also work as
mediators, and the approach is not litigation light. Jacinta Gallant from
Canada is doing incredible work as a mediator using the Insight approach to
conflict resolution (she’s done some amazing training at the IACP Forum and
came to Minnesota this year for training in our group). These skills work just
as well in mediation as they do in collaborative.
In Minnesota, our protocols specifically allow for mediators to act in the role
as a coach in a collaborative case.
I am a bit concerned about describing the lawyer role within a collaborative
case as just being on “one side.” It is possible I misunderstood what was meant
by that. I believe whole-heartedly in the paradigm shift. When I am working as
a collaborative lawyer, I am an advocate for my client. My view of advocacy is
just very different from someone who does litigation. Ron Ousky likes to say
it’s like having your best friend at the table next to you. It definitely does
not mean that I need to be adversarial or treat the other spouse as an enemy. I
believe it is my job to help my client determine his or her values and goals. I
want them to ground themselves in their core values — not just taking positions
arising out of guilt, anger or fear. I want them to think about long term —
what is really important to them. We find that many couples are aligned on
almost all big picture goals. But two reasonable and even loving people can
have different ideas about how to achieve those goals or meet those values. I
believe it is our job to create conditions that allow them to function at a
high level and have meaningful discussions about where they might have
differences.
I also happen to believe that this same paradigm shift and form of advocacy can
happen in mediation as well as collaborative. It all depends on the mediator,
as well as the lawyers.
Regards,
Kellie
Kellie McConahay
Attorney & Certified Divorce Financial Analyst
McConahay Law Firm PC
3300 Edinborough Way, Suite 550
Edina, MN 55435
Office: 952-405-2065
www.mcconahaylaw.com <http://www.mcconahaylaw.com/>
kellie@xxxxxxxxxxxxxxxx <mailto:kellie@xxxxxxxxxxxxxxxx>
Collaborative Law & Mediation
Featured blogger at www.collaborativedivorceoptions.com
<https://collaborativedivorceoptions.com/celebrating-childrens-milestones-after-divorce/>
On Oct 22, 2019, at 3:58 PM, Bonnie Brown bmb@xxxxxxxxxxxxxxxx [CollabLaw]
<CollabLaw@xxxxxxxxxxxxxxx> wrote:
Thanks, Siri. Interesting. I can see where the settlement process does not
end, just its collaborative nature. I see mediation as inherently
adversarial, where the parties are still jockeying for position. It is
“litigation light.” That does mean it is a bad thing if it gets the case
fairly settled. We may simply be discussing definitions and semantics. Does
the mediator operate and function differently in the collaborative process
than in the adversarial process—just as the parties’ counsel operates and
functions differently?
Best,
Bonnie
From: CollabLaw@xxxxxxxxxxxxxxx <mailto:CollabLaw@xxxxxxxxxxxxxxx>
<CollabLaw@xxxxxxxxxxxxxxx <mailto:CollabLaw@xxxxxxxxxxxxxxx>>
Sent: Tuesday, October 22, 2019 11:59 AM
To: CollabLaw@xxxxxxxxxxxxxxx <mailto:CollabLaw@xxxxxxxxxxxxxxx>
Subject: Re: [CollabLaw] RE: MHPs
The Collaborative process does not end when a mediator is brought in. Here in
Michigan, we have included mediators on the team almost from the beginning of
our adoption of Collab many years ago. A mediator can be very helpful in many
ways.
We also make very effective use of one coach for the process itself.
Siri Gottlieb
In a world where you can be anything, be kind.
Sent from my iPhone, please excuse typos and brevity.
Siri Gottlieb, JD, LMSW
1945 Pauline Blvd., Ste. 10
Ann Arbor MI 48103
734-994-4045
www.sirigottlieb.com <http://www.sirigottlieb.com/>
On Oct 22, 2019, at 10:33 AM, Bonnie Brown bmb@xxxxxxxxxxxxxxxx
<mailto:bmb@xxxxxxxxxxxxxxxx> [CollabLaw] <CollabLaw@xxxxxxxxxxxxxxx
<mailto:CollabLaw@xxxxxxxxxxxxxxx>> wrote:
Rana, as I have understood it, mediation is not collaboration. When a
mediator is brought in, the collaboration has stopped. If the case gets
settled that way, fine for that case, but it is not collaboration.
Mediation has two sides, albeit proceeding more politely than in hard ball
litigation, and remains a tool within the adversarial process and potential
for court processes looming as leverage. Collaboration has one side, with
the whole team pursuing the same goal—family stability and peace--and court
not possible under the Collaborative Agreement.
If the case is very difficult, such as when full-blown personality disorders
are present, the team may need 3 MHPs, one neutral to lead the sessions, and
a coach for each party. Sometimes even the financial neutral is pressured by
the dynamics into morphing into a coach—a manifestation to be avoided, and a
clue more and/or different professionals need to be involved at that point.
I get the impression you have had a negative experience along these lines.
If so, wonder how it worked out.
Best,
Bonnie
BONNIE M. BROWN
ATTORNEY AT LAW
Suite 201, Bailey Office Park
4205 Springhurst Boulevard
Louisville, Kentucky 40241-6160
U.S.A.
+1 502 412-9190 ext. 226 telephone
+1 502 587-0040 direct line
+1 502 412-9196 facsimile
bmb@xxxxxxxxxxxxxxxx <mailto:bmb@xxxxxxxxxxxxxxxx>
When does/can a non-licensed but qualified mediator replace a qualified
licensed MHP on a collaborative case when a full team is available?
Can attorneys choose to have less than a full team, include a mediator and
call it a collaborative case? Do attorneys call the configuration of a case?
What has happened to the full team approach?
According to IACP guidelines, standards and ethics, one does not replace the
other. Is it accurate to assume full teams are not being used in
collaborative cases and the role of the MHP is being minimized?
Thank you in advance.
Please offer feedback.
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