ORIENTATION TO MEDIATION IN PORTLAND, OREGON

Hugh McIsaac

This article describes an orientation to mediation used in the Mulrnomah County Circuit Court in Portland, Oregon. The role of the judiciary makes this program unique, and the orientation has increased the nwnber of agreements reached. This orientation helpsparents make decisions about mediation and use the process more effectively.

This article describes the orientation employed by the Multnomah County Circuit Court, Family Services located in Portland, Oregon. The orientation takes place every Wednesday morning from 9 a.m. until 10 a.m. as an introduction to the mediation process (see appendix for script of introductory comments). The mediation occurs following the Orientation.

JUDICIAL MESSAGE

A family law judge greets the audience, usually anywhere from 15 to 30 couples. The judge describes the value of mediation and emphasizes the parents’ need to work out their own solutions. This time is usually the first and only time parents see a judicial officer. So this contact is very helpful and underscores the importance of the mediation process. The judge de- scribes the law and how he or she would approach a custody dispute. But, again, the message is “Try to work this out on your own.” The live presenta- tion by one of the judicial officers is one of the real strengths of this orientation. It tells the families mediation is serious and gives the parents a powerful message about how they should resolve future conflict.

CHILD DEVELOPMENT

The next topic is child development and divorce. This segment stresses the individuality of each child, family, and the need to construct a parenting plan for the child, family, and stage of development. Parents of young infants are made aware of the child’s need for plans, structure, and consideration of

FAMILY AND CONCILIATION COURTS REVlEW, VOI. 32 NO. 1, JZUIU~IY 1994 55-61 Q 1994 Sage Publications, Inc.

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time. Overnights are not practical in the first 12 months of the child’s life. The various ages and stages of development are discussed in relation to the particular concerns involved in that stage of development.

Initially, the audience is asked how many have children between the ages 0 and 1 year, 1 and 3,3 and 6,6 and 12, and 12 and above. The stages are then discussed in the following format:

Stage Important T a b

Infancy:

Toddler:

Learning to trust-need for structure; plan for short, frequent contact because of infant’s sense of time Learning to be autonomous-need for supervision; no external controls; learns language and muscIe control; potty-training; need structure and time with both parents; overnights OK Learning sexual identity; attraction to parent of opposite sex; developing conscience; vulnerable to divorce and take on blame-need to have clear explanation about divorce and not be used as pawns Learning self-esteem, education and reading, skills necessary to function in culture; peer relationships; teamwork-need both parents to be at games and show an interest Leaving the family; becoming an adult; heterosexual relationships-want minimal contact with both parents but need consistent clear limits as an expression of love

0-1 year

1-3 years

Young Child 3-6 years

Child: 6-12 years

Adolescence: 12-18 years

“YOU’RE STILL MUM AND DAD”

After much experimentation, the New Zealand video, “You’re Still Mum and Dad,” is used. What is valuable about this particular video is the discussion by the children of their needs. It is very comprehensive and uses a variety of children who are ethnically diverse, and at different ages and stages of development. The video is fast-moving and parents do not lose interest.

DIVORCE DYNAMICS

The presentation moves to a review of the dynamics of divorce. The Kubler-Ross paradigm of denial-anger-bargaining-depression-acceptance is discussed in relation to the divorce cycle. Several books are cited, such as Isolina Ricci’s Mom’s HousdDad’s House, Lois Gold’s Between Love and Hate and Judy Wallerstein and Joan Kelly’s Surviving the Break-Up, and Ciji Ware’s Parenting Children Following Divorce.

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MEDIATION AND COURT PROCESS

How mediation fits into the court system is then explained. The mandatory referral in Multnomah County is explained: Parents are given a chance to work out their own agreement. The mediation is confidential. Parents are told that if they do not successfully mediate an evaluation will be conducted. About 70% of the matters are resolved prior to being referred for an evalua- tion. In addition, once the evaluation is completed, most of the matters settle, and only a very few cases go to court. The child custody/visitation evaluations are shared with parties and with the attorney prior to submission to the court. The evaluator may be cross-examined.

CONFLICT RESOLUTION TRAINING

The next step in the orientation involves Roger Fisher’s and William Ury’s Getting to Yes, Negotiating Agreements Without Giving In and Getting Past No: Negotiating Your Way from Confrontation to Cooperation.

POSTORIENTATION ACTIVITIES

At the end of this presentation, the parties are given both the custody/ visitation worksheet and the evaluation form for the clients to evaluate the service. Appointments are set for 10 a.m., 11 a.m., and 1:30 p.m. Those who have to wait for an appointment are encouraged to work out their BATNA, or Best Alternative to a Negotiated Agreement, before they meet with the mediator so the time waiting is productively spent. Many parents work out their agreement at that time.

SUMMARY AND CONCLUSIONS

The orientation provides important, essential information to all the liti- gants at the same time. It emphasizes the collaborative and problem-solving nature of the process opposed to the widlose paradigm of the adversary court system. The orientation has been very well received by clients, and because it is just before the actual mediation it has greatly enhanced the number of agreements developed.

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APPENDIX Premediation Group Seminar (by Hugh McIsaac)

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As you have just learned from the judge, you know your children much better than any judge or psychiatrist or counselor. You’ve lived with your children for a long period of time far longer than anyone else.

The purpose of our getting together this morning is to share with you some information you might find helpful in reaching a settlement regarding your children.

Divorce isn’t the end of the family. It is a reorganization of the family. What is important is to develop a way to parent that makes sense for you and your children. So today we are going to provide you information to help you by the end of the day work out an agreement that will actually become a court order. In effect the court is giving you a chance-an opportunity to write your own court order, which will be much more responsive to your needs. With your knowledge of your children and with the help of a mediator you can work out a plan in your best interest and the best interest ofyourchildren. Allofthe major studies indicateit isimportant for parents to cooperate. Unresolved, chronic conflict is the most damaging event for children in divorce.

Before we do that I’d like to share with you a little information about Family Services and what you can expect today. One of our goals is to help you become your own mediators, to learn how to resolve conflict. What conflict is and how best to resolve it.

You will then see a videotape about divorce through the eyes of children. This video is an excellent video, giving some idea how children seedivorce. After the video another member of our staff will meet with you to talk about the developmental needs of children at different ages and stages of development. A plan for a 2-year-old may not be the appropriate plan for a 14-year-old. Each child is different-ach family is different. You need to establish a plan that works for you as a family and works for your children.

Family Services helps when parents cannot agree. You have met the mediation requirements by coming here today. If you don’t want to mediate, it’s your choice. You’ve satisfied the requirements by attending this meeting. If you think you might benefit then it is your choice to continue. You don’t need to agree.

If you need to talk with the mediator separately you should let the mediator know. The mediator will talk to you both together. The mediator will then talk to you together and separately and if the children are here they may talk to the children, if appropriate. The mediator may also talk to your children to learn their needs, not for them to make a choice. It is very inappropriate for children to choose which parent with whom they will live. Children need to have their parents work together. If forced to choose, they often make choices not appropriate to their needs. What is most important is to learn your child’s needs. The mediator can help you find what those needs may be.

Seventy percent of the families we see reach an agreement in Family Services. We reach about 1,000 agreements a year. Those agreements are reviewed by your attorneys and they are signed by the judge and become a court order. In effect, as I said earlier, you have a chance to write your own court order.

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One of the advantages of the mediation process is you can change your agreement at any point in time as your or your children’s needs change just by calling the mediator. Your agreement is not a document set in cement. It is a living document. Also, there’s no cost for this service. This service is paid for out of the divorce filing fee and marriage license fee.

If you go to court it can be very expensive. Some kids will be going to college but it’s not going to be your kids. You can spend a lot of money in this courthouse fighting over custody. It’s expensive, it’s costly, and it can be very damaging. In some instances, it may be necessary-not every situation ought to be mediated but most can be, most parents can cooperate, most parents can work together.

If you don’t reach an agreement in mediation, then a Child Custody Evaluation will be made. These evaluations take from 1 to 2 months to complete. You and your attorneys will receive a copy, and a judge may review the report and make a decision for the family. The evaluation costs $150.

The judge may make a decision what is best for the family without a report Very few cases go to trial-less than 2% of all the filings go to trial in Portland. If it goes on to an evaluation, everything you talk about in mediation is confidential-the mediator makes absolutely no report to the evaluator, who is a separate counselor in our ofice, or to the judges. Mediation is a place for you to talk about what you think might work. Anything you talk about is not going to be imposed. The mediator does not make judgments about you-about you as a parent. The mediator is there to help you work out something you as parents feel is best for your children. The mediator is not there to impose a solution-they may suggest possibilities but it’s your choice-you are the one who has to chose what works. They may test some of the solutions you come up with to see how they work or if this is going to make sense, and so the mediator can be very helpful to you because most of the mediators you’ll be seeing would have seen between 300 and 500 families in a given year. So they have talked to a lot of families and they have seen a lot of different solutions and ideas. Again, it’s your solution and not theirs. It’s your life-your children-you have to reach the agreement together.

Let me now talk a little bit about some material that might be very helpful to you. The first is a book by Isolina Ricci called Mom’s House, Dad’s House-a very interesting book. This is written by a mother of six children who herself worked out an arrangement and as a result of that experience wrote a book and then got a Ph.D. at Stanford. This book gives some excellent ideas you might find helpful. One of the most important ideas in this book is how we relate to each other in three basic ways. The first way we relate is on an intimate level. This level can be either positive or negative and when you are going through a divorce, there is a tendency for anger, for the intimacy to be negative. If you have lived with somebody for a period of time, there is always going to be anger. It is normal. What is important is not to let that anger affect your ability to parent.

The divorce is in the spousal, not the parental, role. You will be parents forever. You will have weddings, graduations, grandchildren. All kinds of events throughout the rest of your lives where your children will be involved. So it is absolutely essential parents cooperate and develop a way that works as parents-not as husband and wife.

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The second way we relate to each other is as friends. Now it’s not realistic to expect to have a friendly relationship when you are going through a divorce,

Which leads to the third way we relate to each other: a business relationship. It doesn’t matter whether you like or dislike each other. What is important is we get the job done!! The business you have to transact is raising your children.

Another book you may find helpful is Getting to Yes by Roger Fisher and William Ury. These very principles will be used by your mediator and will help you work out a set of principles that will be very helpful to you in working out the dispute. These principles were developed watching Cyrus Vance and Warren Christopher work out the Camp David accord, the peace treaty between Egypt and Israel.

The first principle is do not bargain over positions. One of the problems of a courtroom adversary system is that each person comes in with a position hoping a compromise will cut to the middle. These solutions are certainly detrimental to one, if not both, because in a situation where you have a victim, everybody is a victim. It forces the parents like two scorpions in a bottle to fight and take a position-“who’s right, who’s wrong” rather than looking at how they can solve the problem and work together. Don’t bargain over positions.

The second principle is to separate thepersonfrom the problem. Often, in conflict, we focus in on “you”-or the person who “did wrong.” What we need to focus on is not “who is wrong” but “what needs to be done differently” to make it work. And that’s very important. You separate the person from the issues. What can we do differently to make this work?

The third principle is focus on the underlying needs and interests. You are all concerned parents and everyone has some basic underlying needs and interests that are important to be met. Your children have underlying needs and interests. What’s important is to fashion a plan meeting all these needs and interests in a way that makes sense for first your children and second for you. If you focus on these underlying needs andinterestsit willmakeitaloteasiertotryandunderstandtheotherperson-in a sense, crawl into the other person’s skin and see how they see things. We need to see the situation from their perspective.

The next principle is to invent options for mutual gain. Now there are some unique situations in which everybody benefits. These options are like nuggets and are the cornerstones to your agreement.

The next principle is to agree about criteria for resolving the dispute. Not everything works out easily. Life isn’t that simple. Conflict is normal and there are some times when agreed upon solutions cannot be found. If you can’t agree about a solution, maybe you can agree about the criteria you will apply to reach a solution. For instance, let’s say there’s an argument about what school the child should go to. Let’s see if can agree on a set of criteria. What should we consider in making this decision? The first item to consider might be proximity. The second criteria might be academicfit. The third criteria might bepeer group relationship. As long as you agree about criteria you will find reaching a solution much easier. Also, by developing criteria you develop a shared vision about what would be best for your children and eliminate the sense of ownership of your children. Identifying criteria helps focus on

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solutions, what is going to work for you and your children. Again, not everything always works out so easily.

The next principle is develop a BATNA, or Best Alternative to a Negotiated Agreement. What we mean by this term is each one of you pretends you’re the wise person or judge deciding these issues. Then both of you come together and compare your BATNAs. What you’ll find is there are points of agreement-get those down first. The points of disagreement-begin to process them. The way you do process these issues is think of all the ways you can solve them-solution A, solution B, etc. Be very creative. Then go back and apply the criteria you developed earlier. What you’ll find again is that most of these issues will be resolved. In some situations you may need a tiebreaker and one of the things I found very useful is the “principle of last compromise.” The person who gave in on the last point is the person who prevails on this point. The principle of last compromise helps solve some situations when you can’t agree. For any remaining issues you may need an arbitrator or judge.

These are some steps that you can find quite useful-they’re easy to talk about and more difficult to apply. However, I think these principles will make your life a lot easier and the children’s lives a lot easier.

Finally, I’d like to tell you I know there are lot of places you’d rather be than the Multnomah County Circuit Court. We respect that. We know that this is a difficult time for you but I want you to know we have a lot of respect for you and what you’re trying to do here today and I hope we can be of help to you and work out a parenting plan that makes sense for you and your children.

Hugh Mclsaac is Director of Family Services for the MulmOtnah County Circuit Court in Portland, Oregon