Types of Divorce Mediation

Divorce mediations can be structured in different ways. And, there are different types of mediation.  Each mediator will have his or her own style.

The basics of any mediation is that the parties have agency, meaning that the parties are empowered to create their own solutions to resolve differences. The parties to a mediation also operate on the principles of “informed consent”, meaning that they are given the information they need to come to a resolution and are making their own decisions. It is also a basic tenant of mediation that arriving at a consensus is voluntary. Even in court mandated mediation, attendance of which is not voluntary, the parties are not obligated to come to an agreement.

Another basic tenant of mediation is that the mediator will be impartial. The role of the mediator is to assist the parties to arrive at their own solution. As is often the case, one party may be more dominant than the other. Parties who have years of communication patterns may find it difficult to negotiate together in a way which reflects the best interests of both parties.  Impartial does not mean that the more dominant party can dictate a result. Impartial means that both parties have an equal opportunity to be heard in an environment which promotes dialog and respect.

A divorce mediation can be live or online. If it is live, with both parties and the mediator, it can be conducted around a conference table with everyone in the same room. Or, it can be conducted with the parties separated into different rooms. If the parties communicate well and respectfully, the role of the mediator may be to guide the conversation. If one party feels belittled or disrespected by the other, the mediator may choose to put them in separate rooms and shuttle back and forth between them. The mediator will meet privately with both to discuss options and positions. In this case, the mediator will focus on the substance of achieving a settlement. The mediator will bring settlement proposals back and forth and filter out the less helpful comments.

There are also several different types of mediation. One type of mediation is called “evaluative.” In this type of mediation, a mediator will express an opinion about what a court might do if the parties were to go to trial. The mediator will give guidance based on his or her understanding of the law and experience in court.

Another type of mediation is called “transformative.” In this type of mediation, the mediator is attempting to have the parties understand where their interests overlap and to evolve from competitors to cooperators. The goal of transformative mediation is to get the parties to move beyond their own positions by recognizing that their interests align fundamentally.

Another type of mediation is called “facilitative.” Facilitative mediation helps the parties to discuss their differences in a respectful manner to reach a mutually beneficial solution.

And, finally, there is a style of mediation called “muscle mediation.” This is the style I employ. It’s called muscle mediation because you are helping the parties towards a particular solution and may use different incentives to get there. In my practice, in order to ensure that both parties come away with a “fair” settlement, I use Oregon law as a starting point. I want the final settlement to be consistent with what Oregon law would provide the parties as if they had gone to court. I provide a detailed explanation of Oregon law on all the issues in their divorce. I provide a workbook also outlining the law. And, I explain that if they are unable to achieve a resolution, that I will make the final decisions for them, again, based on Oregon law.