The Mediation Observation

Note: To protect the confidentiality of the mediation participants, I’ve omitted any identifying information in this observation essay. 

The mediator’s presence looked unnecessary until it looked helpless. “Does it usually escalate that quickly?” I asked after the abbreviated session. “No,” Staff Mediator Andrew Gange said almost point-blank. “Some places have a panic button.” I looked at the far-more-experienced mediator stunned at the proposed recourse. “You would have used it?” I asked, trying my best to make the question sound less like a judgment.

I sat in the waiting area of the Family Mediation office in the Baltimore County circuit courthouse, listening to attorney-client conversations that transpired intermittently between infomercials playing on the mounted television. If it wasn’t for the trying-too-hard suits, old-boys’-club chitchat, and the assortment of binders, files and briefcases, I could have easily mistaken this room for the receptionist area of a dentist’s office. I supposed mediation could be a lot like pulling teeth.

With little sleep and early morning bike-then-taxi rides, I struggled to keep my eyes open waiting for the scheduled 9 a.m. mediation to finally get started. But I hoped that this long-awaited observation session would feature actively engaged participants.

Introduced to the man whose mediation skills I would be observing, I recognized him instantly as one of the smart, eloquent guest speakers from the mediation bonanza class. Admiring his perspectives and approach, I was excited to see how mediation is supposed to be done. But I didn’t want to make him feel uncomfortable by mentioning his visit on the likely chance he didn’t recognize me.

“I remember you asking questions,” he said. The look on his face combined with the hint of disdain in his voice told me that he found me obnoxious during our seminar course. The thought crossed my mind that I just shouldn’t speak. Ever.

Self-identifying as a facilitative mediator, Gange explained that the subject of the mediation was a child access case between the parents of two children: 9-year old and 10-year-old boys.

I waited for him to escort me into a conference room as he scanned his office. In my mind, I pictured relocating to a round table conference room akin to the clinic’s meeting rooms. Then Gange said he would find a chair for me. It was my turn to scan the cramped office. “I think I’ll have you sit in the back corner after we close the door,” he said. It immediately struck me how intimate the non-adversarial space must feel for adversarial parties.

Flanked by the door and a bookshelf filled with mediation literature and resource pamphlets, I sat watching a mediation between parents who looked like they had everything figured out, until they couldn’t even sit in the same room for a full 2-hour mediation session.

The mediator’s introduction was a lot shorter than the one I had sketched out for our class assignment. It was undoubtedly a byproduct of the practical reality facing court mediators: limited time constraints. But I think the participants appreciated his efficiency and ability to streamline conversation. The main point of Gange’s opening remarks was that he was acting as a third-party neutral in a voluntary process wherein either participant could simply walk out.

The father had retained an attorney, who was not present during the session. The mother did not have legal counsel. But if the mediator hadn’t asked the participants this question, I doubt I would have guessed that this power imbalance had existed, which may indicate that A) perhaps this is not an inherent power imbalance or B) the power imbalance, mitigated by other power dynamics, may have had less teeth in this context.

Gange opened with a child-centered, open-ended question: “How are the children spending time?” The parents had an arrangement. The mother stood with the two boys during the week. The father picked them up every Friday and dropped them off every Sunday, generally around the same time.

“How is the arrangement working out?” The mediator asked. Both parents said “no discrepancy” existed. For these participants, this line meant that they “don’t fight about it.” I wondered why these parents were even here. For a few brief moments, I felt like having a third-party neutral was superfluous for these two persons. They were on the same page. They had it figured out – or so I thought.

The father expressed that he was okay with the children spending Thanksgiving and Christmas with their mother, but he wanted to spend more time with them in the summer, for the Fourth of July. On school breaks, the children usually stood with their father. The mother said she didn’t want him to have the boys for the whole summer, and that she also wanted to spend time with them on the Fourth of July.

The two agreed that the children would party with their mother, then spend the night with their father watching the fireworks. They agreed to “split” the summer. Gange acknowledged the consensus, saying that it sounded like both parents appreciated a flexible schedule. The parenting agreement was practically writing itself.

“We communicate fine about the kids,” the mother said. “The issue is child support.” That one of the participants was represented by counsel meant that the court mediator was not going to calculate child support. But Gange hung back, allowing the conversation to play out.

The mother talked about trying to get child support from the father for a year, electing to file only after he had taken the boys the day before the support was due. She alleged that, at that time, the father had said he would bring the boys back only if she signed “the paper” i.e. an agreement limiting the amount of child support he had to pay. The children didn’t go to school for the next two days, the mother said.

“I’m not for this,” the father said before asking if she wanted to “do this, here.” He explained that he had picked the boys up after their mother had left them alone for hours. The mother corrected him, saying that she went to the Giant supermarket for about an hour and 30 minutes. She quickly got defensive at the insinuation that she was a “bad mother.” “I never said that,” the father quipped.

The mother talked about how, since June, he hasn’t had enough money to pay the boys’ child support, but he had enough money to pay his bills, his girlfriend’s bills and lawyer’s fees.

Visibly angry, the father countered that he had only gotten an attorney because she wanted full custody. He said he always wanted joint custody. He continually harped on the amount of days that the boys had allegedly spent with him. The mother let out an irritated sigh as he uttered the number 140.

To no avail, Gange tried to interject and reflect saying, “you’re making a couple of points” and “your main point is that…” But each time he was cut off as the participants raised their voices. Gange later rationalized it saying that his style is often to sit back and “let it develop.”

The mother accused the father of trying to calculate days to pay less child support. “I’m not for this,” the father said, standing up out of his seat. I wasn’t sure if I should get up to move my chair away from the door. I wondered if it would empower the father to leave, rather than feel trapped, or unnecessarily invite him to bail out of a difficult conversation. The father moved a step forward toward the mother of his children. In the small office, one step meant he was an arms-length away.

I watched Gange, the petite white male mediator edge between the black parents. He was visibly uncomfortable. At one point, he touched the father’s shoulder – an action he would later frame as a way to let the father know that he was there.

For Gange, the two participants had become so fixated on their interaction that they had essentially tuned out his presence, forgetting he was even there in the room. When Gange later said this to me, I could not help but think that, although he had tried valiantly, his continued ultra-passivity allowed the participants to tune him out and linger in an unproductive discussion.

The father eventually shook hands with Gange. “I’m not for this,” the father said one last time before walking out of the room.

The mother remained in the office, unloading her frustrations, which Gange acknowledged. The mediator gave her some resources about finding legal counsel.

She accused the father of creating fake pay stubs. Gange said that a lawyer wouldn’t knowingly submit fake pay stubs into the court record, and that, ultimately, a judge with a lot of experience would evaluate the evidence.

The mother said that it was only after the father realized how much he would be paying in child support that he wanted to make this a custody battle. She said he had just started doing things like picking up the boys on the weekend, buying them clothes, videogames, bikes, movie tickets and sneakers – and that it “isn’t enough.” She mentioned that the lights and cable had gotten cut off. And she choked up talking about how she wasn’t able to buy her children a meal from McDonald’s.

She said she had asked him for $800 in monthly support. But he had allegedly said, “You got a man now. I don’t have to help you with that.” The mother said that it wasn’t fair to that man – the father of her other two children – to financially support this father’s sons. Gange summarized and reflected, talking about the “burden” and disappointment the mother felt in seeing her children suffer, then he reminded her that the settlement conference was scheduled for next month.

On the bus ride back to the glass box of law school, I thought about why I didn’t share Gange’s obvious discomfort during the mediation. I concluded that the sort of in-your-face yelling that transpired was congruent to my experiences growing up in a blue-collar Azorean immigrant family. A panic button seemed ludicrous. This was just the way people talked. It was normal.

Gange’s interaction with these parents really underscored the need for good judgment, cultural competence and active (but not controlling) facilitation. More than anything, it illustrated just how difficult it is to mediate family disputes – the finesse, intelligence, flexibility, patience, and humility it requires.

Even a person as smart and skilled as Andrew Gange is going to struggle in knowing when to speak and when to listen, trying to balance promoting autonomy and facilitating a productive mediation – whether evaluated based on an outcome (agreement) or process (relationship).

I have so much more to learn about listening, balancing and mediating. But I learned that working as a mediator means being open to a dynamic learning process that is filled with struggles, challenges and opportunities.

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