These words changed my life. When I heard them uttered in a crowded hallway in the District of Columbia Courthouse, I made a decision right on the spot. I would leave the practice of adversarial law and devote myself to becoming a family mediator.
At that time (1993) I was a private lawyer specializing in child abuse and neglect cases. I also served as an Adjunct Professor of Law at American University, teaching juvenile law. A few years earlier (1987-1989) I had served as the staff attorney in the Counsel for Child Abuse and Neglect Office of the D.C. Superior Court. In that role, I trained and assisted literally hundreds of lawyers to represent children and parents in child welfare cases. It was difficult work, but since entering this field in 1985 I had brought a crusader’s zeal to it. I learned to use a lawyer’s tools to prod a recalcitrant bureaucracy to meet its legal obligations to abused and neglected children, as I fought for supportive services for children and their parents. I did my best to provide a model of vigorous representation of children and parents in these family court proceedings.
However, over time I became increasingly disheartened about the impact of adversarial litigation on families. In case after case, I saw that, regardless of which parent “won” in court, the children were ending up as losers. Caught in the “win or lose” arena of family court litigation, parents often ended up using their lawyers to humiliate each other and in the process impoverished themselves financially.
At the end of the day, we lawyers, mental health professionals, and judges went on to the next case. But the parents still had to find a way to raise their children. They would be “co-parents” for the rest of their lives. There was nothing about the adversarial court process that helped them to succeed at this lifelong joint task. As I continued to litigate these cases, I found myself thinking over and over again that there had to be a better way to resolve family disputes.
One day, right after a particularly ugly and unproductive court hearing, in which I represented the father of three school-age children, the mother’s attorney, a very thoughtful lawyer named Joe Tulman, approached me. He said: “John, we are not getting anywhere with this couple. This is the third contempt hearing we have had with them, and they still aren’t following the judge’s orders. Why don’t we take them to mediation?”
Like many lawyers at that time, I was not familiar with mediation. Joe explained that in mediation, a trained, neutral facilitator would help the parents to reach their own agreement. We each talked with our respective clients, who agreed to give it a try, and a week later the mediation took place through the Court’s “Multi-Door Program.” In this program attorneys were allowed to attend the mediations, but were not allowed to talk. To say the least, it was an unusual role for us attorneys to play.
The mediator was a retired attorney, very well intended, who (by my current standards) did a workmanlike but not inspired job of mediation. Nevertheless the process worked so well that it quickly produced two “miracles” in a single session.
The first miracle was that, once the parents understood that the mediator was there only to facilitate their discussion and would not sit in judgment of them or tell them what to do, they immediately began to talk about their problems in an extremely thoughtful manner. Rather than hurling accusations at each other, as they had done in court, they actually listened to each other. They talked about some painful things that had happened between them in the past, and they talked about some current problems connected with their children which troubled both of them. After a while, their discussion focused on the father’s hurt feelings that, when he came to pick up his children on weekends from the mother’s house, her mother (his former mother-in-law) refused to speak with him. As they talked, both parents realized that there had been a misunderstanding and that it was possible to get the father and grandmother, who were genuinely fond of each other, to begin cooperating with each other again.
That realization led to the second miracle. The parents reached an agreement concerning the scheduling and other parenting disputes that had been the subject of repeated court battles. They reached their own agreement.
A few weeks later the four of us—mother, father, Joe, and me—were back in the basement hallway of the courthouse waiting for a routine review hearing in the case. As we were waiting for the case to be called before the judge, my client walked over to his former wife and in a loud voice began to complain about something that had happened the prior Saturday when he had gone to pick up the children. My heart sank. I had seen these types of arguments before and guessed that we were headed for yet another unpleasant and unproductive court hearing. At first, the mother glared at my client with a hard look on her face, an expression I had seen many times before. I heard my client finish his complaint by saying, “And that’s not what is in our agreement.” As he said the word “our,” he made a gentle gesture back and forth between them with his hand. At that moment I saw her features soften in a way that was completely new to me. She was silent for a moment, thinking. Then she smiled weakly at him and said “You’re right. That’s not what was in our agreement.” And as she said the word “our,” she too made the same gentle hand gesture between them. “I’m sorry,” she continued. “I won’t do that again.” He looked at her, surprised, and said, “Thank you.”
I couldn’t believe what had just happened. It was like a dream of conflict resolution come true. The case was called, and we had a short and dignified hearing. The parents jointly explained to the judge what they had decided, and the judge approved it. I said good-bye to my client and watched him and his former wife walk together out of the courthouse talking. I said to myself, “I was right. There is a better way to resolve family conflict than litigation. And I think I’ve just found it!”
After that I began learning as much as I could about mediation. It took a few years to make the transition from being a practicing family lawyer to becoming a full-time mediator. I read, received training, and served as a part-time apprentice for a year. The course of my professional life had been changed, and I’ve never looked back.
As a full-time family mediator, I now get to see re-enacted, on a daily basis, the same kind of profound peace-making between family members. It’s convinced me that, however bitter a family conflict may seem, there is always at least one elegant solution to the problem. I learned that mediation is an effective way for couples to find that solution.
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