Mediation 101: An Interview with Gene A. Johnson, Jr., Pt. 2

This is Part 2 of our extensive interview with Gene A. Johnson, Jr., also know as, “The Mediator”, who provided us with a basic lesson about mediation. There was so much goodness in the conversation, that we’ve broken this one into a 4-parter, so be sure to read Part 1, too.  You can also check out our “Mediation 101″ episode of “Co-Parenting Matters” to hear Gene talk more about mediation.

Gene A. Johnson, Jr. aka "The Mediator"

WP: So, I want to clarify a couple of things you talked about.  I thought it was interesting when you said that in some divorce cases, there may be 2 mediators for gender balance.

Gene: As mediators, we pride ourselves on being impartial and neutral, so a well-established and effective mediator would probably tell you that it doesn’t matter what their gender is.  But, that’s a choice and an option the party has.  Going back and comparing this to litigation, you know you can’t pick your judge. In mediation, you can select your mediator.

WP: Can you give us a sense of what percentage of cases actually do get resolved via mediation versus a court order?

Gene:  It really depends on your jurisdiction.  So for example, in California, I believe almost all family cases when you go to court, they don’t even allow you to see a judge before going through some mediation or mediation-like process.

WP: Got it.

Gene: But in other jurisdictions, mediation may not be offered or may be offered as an afterthought.  So it varies from jurisdiction to jurisdiction.  I can say though that studies have shown that when a case does go to mediation, somewhere along the lines of somewhere between 70-80% of those cases do come to some sort of resolution and agreement.

And, if you reach an agreement in mediation, this is a benefit of mediation, the compliance rate is extremely high.  You’re looking at nearly a 90% compliance rate because this is what parties have agreed to on their own will.  No one has forced this agreement on them, so they are more likely to comply with it.

WP: We talked previously about situations where one party may have an attorney and the other may not.  But what about issues like the financial ability of one parent to sustain a mediation forever versus the other parent.  Are there ways that mediators are trained to insure that the process does come to closure?  And how does a parent who doesn’t have a lot of money to go on and on in this process insure that the power imbalance isn’t impacting or forcing them or putting them under duress to sign an agreement that they really aren’t fully bought into?

Gene: Right.  Power dynamic…this is a huge topic.  Mediators have entire 3-day and 4-day conferences around this subject, because it is very important.  First let me say that it is not a mediator’s job to balance power.  Once a mediator takes on a role of balancing power, he or she is no longer neutral and no longer impartial.  Because now I’m taking sides, and I’m trying to make sure that this person is not getting the short end of the stick or what have you.

That being said, in every relationship and every encounter, there is a power imbalance.  No two people enter into any negotiation on the same footing.  Like you said, one may have more money, one may have more resources, whatever the reason, there is hardly ever equal footing of power.

That’s okay, though. because that’s how we make decisions.  When we make a decision, we base it on that.  We base it on what we have and the dynamics in a relationship, etc.

WP: Right.

Gene: That being said, it is a mediator’s job to make sure that no one is using this process unfairly or not negotiating in good faith…and I put that in quotations.  So if the mediator feels that someone is using this process to get at another person or just to wear the other person down, then the mediator can find him or herself in an ethical situation where they may have to stop the mediation or determine if that the case is not appropriate for mediation, because a party is not negotiating in good faith.

For the most part, this plays out in cases of domestic violence.  In domestic violence, there’s a huge power imbalance and one party is usually coerced either by fear, intimidation or concern about their safety, so they are willing to agree to almost anything.  In those scenarios, that case should be screened out of mediation.

Cases where there is domestic violence in a relationship should not be referred to mediation.  In mediation, we feel as long as a person can freely negotiate without fear of  harm or safety, they are not coerced into anything as well as they are making an informed decision, they have all the information they need, then that case is appropriate for mediation.

WP: Got you.  What other examples of situations are there where mediation may not be a viable solution for parents?

Gene: Mediation may not be a viable solution, once again, if there is a domestic violence situation.  Mediation, obviously, will not be appropriate if one person does not want to go to mediation.  So those two things, other than that, I think mediation can work in almost any other scenario.

Even in scenarios where you may think you’ve decided on all of the parenting arrangements and all of the custody and limitations, everything except for the month of July, because maybe the father wants the child to spend the month of July with him.  You can go to mediation just to resolve that one issue, and all the other issues can be decided in litigation in court.

I think mediation allows that flexibility, so where you may think mediation may not be appropriate for all issues, there may be one or two issues that you can work out in mediation.

WP: So does that mean that for parents who, for example, want to modify orders at some point, years after or months after there’s been a court order, mediation is a potentially good option for addressing that.

Gene: Mediation definitely may be a good option for addressing that sort of thing; although, I don’t want to overstep my boundaries and give mediators more power than they have in terms of overturning a court order or a court decision.  So what I would recommend is that if you go to mediation and you want to amend an agreement, that’s fine, but make sure you go to your lawyer or to court and go through the proper channels of doing so.

In some jurisdictions, it’s okay to come up with mediated agreement then present it to the court and say okay, this is how we want to amend our parenting plan.  You really need to check with your jurisdiction in terms of how that process is done, but I believe that mediation could definitely be an option.

Read Part 1 of this interview

Listen to our discussion with Gene on “Co-Parenting Matters”

WeParent is a community of parents and parent advisers striving to give our children one of the keys to a happy, healthy and fulfilled life…strong families. We are on a mission to support and uplift African-American mothers and fathers, like us, who are living apart but parenting TOGETHER.

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