The Closer

A Mediation Newsletter October 2010

The Interactive Mediator: Problem Solver
by James Rainwater

One of the truly great aspects of mediation is the ability of the parties to craft a settlement agreement that no judge or jury could ever create or mandate. As I wrote in an earlier newsletter, there are generally two basic approaches used in the mediation of lawsuits: Facilitative and Evaluative. I would take those schools of thought and go one step further to create another approach: Interactive, where the mediator offers creative and sometimes unconventional resolutions.

I have seen numerous child custody cases become mired in the minutia of battling timelines and details, where the attorneys try to cobble an agreement using the confines of the Family Code. As long as the parties both agree, nearly any alternative can be drafted and used, assuming it does not violate public policy. Interactive mediation can open multiple doors of resolution possibility that the parties had not previously considered or imagined.

A family matter that I mediated in the past few years involved a father who wanted to return to his family home in Oregon and take the children to live with him. The mother did not wish to leave town, as they had lived here the entire lives of their young children. The upshot presented by both attorneys was that, unless some unforeseen factor appeared, it would be unlikely any judge would allow the father to take the children that distance from the mother. [The fact pattern has been changed to protect the confidentiality.]

I proposed an entirely different resolution to this predicament. Rather than rehash the legal arguments regarding custody and visitation, I chose to look at the systemic issues at hand. The father wanted his children to have time to enjoy knowing their grandparents and cousins. Also, the father worked in a profession that, if employed by a school district, he could spend the summers with his children "back home." The suggestion was life-changing but straightforward - and unconventional - the father should consider taking a school position. As the mother had no opposition to her children taking summer vacation away from town, this arrangement was their best alternative to going to trial.

Interactive mediation can be applied in varying degrees to any conflict situation. The biggest restriction is the amount of creativity the participants and mediator bring to the conference. Thinking outside the lawsuit may yield resolution and future opportunities that no side could have imagined.

Rainwater Law