Divorce Mediation Blog

GUEST BLOG: Facilitative Mediation Includes Informed Decision Making

Wednesday, August 17, 2016

[This letter to the editor of Lawyers Weekly highlights an important debate within the mediation community. We post it with the authors’ permission. John Fiske and Diane Neumann are giants in our field, and trained both of us.]

July 25, 2016

Letter to the Editor
Lawyers Weekly

Re: Facilitative Mediation Includes Informed Decision Making

Thomas Elkind’s Opinion of June 20 advances our understanding of mediation in distinguishing between facilitative mediation and evaluative mediation. In the latter, the mediator is almost a conciliator and the parties look to the mediator to advise them of the strength of their position. In the former, Tom says facilitative mediators spurn all techniques that seem to involve any evaluation of the parties even if it leaves them uninformed about the laws or procedures that might affect their positions. We disagree, maybe just a difference in emphasis.

Since 1989 we have taught over 1,000 people a different definition of facilitative mediation in our Divorce Mediation Training Associates programs. We believe facilitative mediation is informed decision-making, in which the mediator makes sure both spouses have accurate and relevant information about the laws affecting divorce and the procedures available for obtaining a divorce. The Standards of the Massachusetts Council on Family Mediation say “The mediator has a responsibility to the parties to help them reach an informed agreement.” In addition to encouraging the parties to, seek professional advice, “The mediator may give general information that will help the parties make their decision.” For example, the mediator may explain income tax and other differences between alimony and child support so that the parties know which approach may be more advantageous, or may tell the parties about how they could choose to divide a 401(k) retirement plan with a Qualified Domestic Relations Order, or inform couples married 9 years and 6 months that if they are married for at least 10 years there is a Social Security spousal share benefit.

As Tom writes, both types of mediators need to know the judicial process. Sharing that knowledge with both parties is not the same as giving legal advice to one party about what action should be taken. Part of the great satisfaction we derive as family mediators and mediation trainers is offering a process in which the clients choose their own particular solution with knowledge of the relevant law, sometimes deliberately offering something more generous that the likely legal outcome. It does happen.

Diane Neumann and John A. Fiske have been training divorce mediators since 1989.

Get e-mail notifications of new blog posts! Enter email address below.:

Delivered by FeedBurner

other articles

recent posts


pre-ARA alimony Massachusetts alimony child support Family Law Arbitration Chouteau Levine DOMA alimony orders Massachusetts Alimony Reform Act lawyers Defense of Marriage Act Boston self-adjusting alimony special master SJC Levine Dispute Resolution Center IRC §2704 Divorce Massachusetts lawyers Act Reforming Alimony in the Commonwealth mediation divorce mediation divorce process COLA divorce arbitrators litigation family law arbitrator annulment medical benefits divorce judgment LDRC The Seven Sins of Alimony Massachusetts divorce lawyers Baseball Players divorce and family law fraud Major League Baseball Arbitration lawyer MLB labor agreement family support alimony alimony reform legislation Massachusetts Lawyers Weekly divorce agreement mediators Child Support Guidelines resolve disputes family law divorce arbitration General term alimony Massachusetts Cohabitation facilitated negotiations family law mediation Massachusetts divorce mediators divorce and family law mediators Levine Dispute Resolution Center LLC arbitration conciliation divorced divorce mediator arbitrators alimony law health coverage med/arb Levine Dispute Resolutions traditional negotiations family mediation Baseball Alimony Reform Act Baseball Arbitration family law arbitrators how baseball arbitration works health insurance separation mediations Obamacare support orders Levine Dispute Resolution divorce lawyers alimony statute high-risk methodology Matrimonial Arbitration disputes Self-adjusting alimony orders Divorce Agreements Uniform Arbitration Act divorce arbitrator Same Sex Marriage mediator rehabilitative alimony divorce litigation private dispute resolution divorce mediations lawyer-attended mediation dispute resolution Massachusetts alimony and child support divorce mediators arbitrator family and probate law disputes med-arb