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”

Co-Parenting Matters This Week: Mediation 101

Abraham Lincoln probably wasn’t talking about co-parenting when he advised:

Mediation 101: An Interview with Gene A. Johnson, Jr., Pt. 1

WeParent had the opportunity to chat with Gene A. Johnson, Jr., also know as, “The Mediator”, for a basic lesson about mediation.  There was so much goodness in the conversation, that we’re breaking this one into a multi-parter.  And, adding to the goodness, Gene will be our guest on “Co-Parenting Matters” this Sunday.  Feel free to leave your questions along with your comments below.  And, for now, here’s Part 1 of our interview.

WeParent: Can you talk a little bit about what mediation is generally?

Gene: Sure. Mediation basically is a process where a trained and neutral impartial person, known as a “mediator”, assists parties in communicating, understanding and clarifying their interests, whatever interest they may have. The mediation process usually is confidential as well as voluntary, so that means whatever is said in a mediation cannot be introduced in a court of law or any other administrative proceeding.

Mediation works best, I believe, because you can create your own solutions that address your own needs. We help people have a conversation. Out of that conversation, they are addressing whatever interest they may have and trying to generate movement so people are talking about their interests and not being so positional and adversarial.

WeParent: For clarification, a mediator does not represent either party.  The mediator functions as a facilitator of the conversation that gets both parties to an agreeable solution, right?

Gene: This is true. Mediators come from all different backgrounds. Some mediators are lawyers by profession or by training. Some mediators are counselors. Some mediators are psychologists. Some mediators are social workers. Although that may be what they are trained to do, once they are sitting before you as a mediator, they take off those other hats, and they are there as a mediator.

WeParent: So how is mediation different from other dispute resolution processes? There’s arbitration, there’s just going and have a judge mandate orders. What’s different about mediation?

Gene: Well mediation is different because, once again, you get to create your own solution. If you go through the court or arbitration, usually you may have 10 or 15 minutes with a judge. Then they are going to decide what is best for you in your situation, and they may or may not know you from a can a paint.

In mediation, the mediator will not impose any solutions. You will come up with your own solutions, because we believe you know what is best for your situation.

Mediation also differs because you get to communicate directly with the other party, directly with the decision maker. If you go to court, you don’t usually get to speak to the decision maker. Even though the decision maker may be the judge, usually you will go through your lawyer; and then your lawyer will talk to the judge.

It’s also very cost efficient. The matter in mediation is usually resolved a lot quicker than going to court, so there are less fees in terms of the lawyer fees, etc. Also, you are able to schedule mediations on your own time, which means that if you want to schedule a mediation on Saturday or in the evening hours, you’re not beholden to a judge and whatever court dates that are available or even not available.

WeParent: Are there other emotional benefits? What benefits are there outside of the ones that you’ve listed which are already pretty numerous?

Gene: One benefit is that although mediation usually takes up less time than going to court with motions and adjournments and etc., a mediation actually gives you more time to really talk about how you feel, which is important. Whenever you’re in a dispute, the number 1 thing that usually gets in the way of your resolving the dispute is emotions.

Most of the time, judges are not equipped to really hear how you feel. I’m sure you’ve heard the saying, “the facts and nothing but the facts,” because that’s what they want. Sometimes cases are more nuanced than that, and you may need to express yourself.

One of the misconceptions about going to court is that people believe they are going to have their day in court, and they are going to have this Perry Mason moment where I’m going to get up and say this and say that. The reality is that doesn’t happen. There are so many guidelines; you can only speak at certain times. Usually you don’t get to speak at all. Your lawyer does all the speaking. Everything is very rigid. Everything is very procedural.

There are some courts where even if you submit documents, the documents need to be typed a certain way or in a certain font etc. In mediation, it’s just the opposite. Mediation is very informal. You are having a conversation with the other parent trying to reach a collaborative resolution, which is important. As we all know, after your day in court, usually you will not improve that relationship. The relationship will be a lot worse because you slung mud and have gone back and forth in the adversarial process.  Mediation, which opens up communication, will seek to restore, maybe even better the relationship with your ex-partner or the co-parent.

WeParent: It seems that going to court, to a large degree, is about winning and losing. But, it sounds like mediation has a foundational philosophy that collaboration is the best solution driver.

Gene: You’re definitely correct. Court by its nature, litigating, there’s going to be a winner and a loser. You’re either going to win, or you’re going to lose. And, some would even argue if you win, you still end up losing because you spent time and effort, and you probably did not improve the relationship that you have with your co-parent.

So, mediation seeks to shift the ground a little bit so that the process is collaborative, and you don’t have this jude to prove your case to or to prove that someone else is unfit. In mediation, what we’re looking for is the best interest of the child. And you’re not going to have a judge dictate what is in the best interest of your child. You will.

The other thing is when you go to court, you roll the dice, because nothing is guaranteed. You’re putting the fate of your child in someone’s hands, and judges are human. Mediations give you more control of the process and more control of the outcome.

WeParent: I’m curious about your thoughts on why more parents don’t mediate first, or do they? Is mediation typically a higher percentage of how parents resolve disputes? It just seems like even when my son’s father and I were first splitting up, the initial advice was go to court. Nobody was yelling, go to mediation first.

Gene: That’s definitely true. I think our culture is set up where if you have any type of problem, any type of conflict, any type of disagreement, you automatically get into adversarial mode. So, mediation is often an afterthought or not even mentioned at all. All that you can do when you’re in the situation is think about how can I get even with this person? How can I stick it to this person?

By doing that, you totally forget about the child. You totally forget about what’s in your best interest. Sometimes just because this person did some things that you may not agree with, that doesn’t mean that you cannot work together in a collaborative fashion. Particularly when you have child involved, it’s probably in both your best interests for you to get along and not be so adversarial.

The other thing is that mediation is a relatively new profession. It has been around possibly 40, no more than 50 years, so it’s new. So a lot of people are not aware of what mediation is and not aware of what a mediator does. They may confuse it with counseling. They may think of it as, “Oh, I don’t want to go to that touchy feely thing.” So a lot of people are not away and just have little knowledge of what mediation actually is.

Read Part 2 of this interview.

Check out our interview with Gene on “Co-Parenting Matters”.

Contact Gene A. Johnson, Jr., “The Mediator”, directly on LinkedIn, Twitter or Facebook or email him at GAJohnsonjr AT gmail DOT com.