If you are involved in a mediation, you may be tempted to bring someone with you for “emotional support.” This is most common in family law cases, where feelings are at an all time high and conflict is at a maximum. When the day and time comes for your mediation, leave that person at home. The only “support person” you need in the room is your attorney, because your “emotional support” will cost you time and money, and have you leaving with no settlement and a trial date.
“Emotional support” is a good thing when you’re going through a divorce. You’re in a vulnerable position, and you need a good network of friends and family to make sure you get through one of the most stressful life experiences a person can undergo. A mediation isn’t time for therapy. It’s time for resolution of your case and an attempt to reach an agreement between you and the other party. Bringing an “emotional support” person into the mix will tank the entire session because they’ll never think you’re getting the best deal possible and always push for you to make the other side pay for some egregious sin of the past. You, in your raw, vulnerable state, will be highly prone to suggestion and feed off the anger your “support” person is expressing. This will lead to the rejection of an offer, and make everyone’s life more difficult as a whole.
The best support personnel you can have is a good attorney who understands the true nature of the alternative dispute resolution process, prepares you for the mediation by discussing the best and worst alternatives to a negotiated agreement, and guides you through the mediation session with tact and a strategic approach. By the time you are finished with the session, and an agreement reached, you will be signing an agreement that will become a binding court order. It’s crucial you have a lawyer actually look it over and advise you if any portion of the document won’t fly before the court.
If you’re a mediator reading this and allow parties to come as “emotional support,” and those people are allowed in your lobby, or worse yet inside the mediation rooms, cease the practice immediately. An even better practice is to discourage parties seeking your services from bringing anyone other than an attorney in writing. Place language into your Agreement to Mediate that has the parties expressly agreeing to not bring others into the mediation rooms. If you’re actually practicing mediation and attempting in good faith to keep both parties at the same table, instead of breaking the parties and their lawyers into caucus for a game of “shuttle diplomacy” then keeping “emotional support” parties away from the mediation is going to stop the session from devolving into a shouting match. If you can’t be bothered to conduct the session at one table, removing the “support” personnel will still help tremendously because while you’re working with parties in one room the other side won’t have someone continually in their ear rumbling angry thoughts about how “that bitch/bastard has it coming to him/her” and “make them pay. That’s not good enough. You deserve better.”
Divorce is a hard process. It’s one where people experience very real pain and grief, so it’s good they have a network of support on which they can rely in the days, weeks, and months to come following the dissolution of their marriage. The day(s) on which mediation takes place is not a time to have those parties available to tank the resolution of a dispute. The availability of “emotional support” persons during the mediation, and mediator permissiveness in allowing these parties in to potentially shift the power dynamics of a mediation, is one more reason why I hang my head at the current state of mediation.
Mediation is Dead.