How mediators are helping families end their feuds -- without bloodletting
The dispute between Bridget and James would furrow the brow of King Solomon himself.
Bridget, a 59-year-old grandmother, lived with and helped raise her 7-year-old grandson Ian from the time he was born. James, Ian's biological father, was out of the picture for the first five years of the boy's life. But after Ian's mother Frances died suddenly two years ago, James returned to Vermont to assume his place as the boy's father. (The names of all parties in this case have been changed to protect their privacy.)
Initially, Bridget saw James as an interloper who was trying to tear the boy away from the only family and home he'd ever known. But James saw it as an opportunity to finally do right by his son. His short-lived and tempestuous relationship with Frances had never been conducive to raising a child together. But after Frances died, James felt it was his moral obligation as well as legal right to raise his son as he saw fit -- even if that meant removing the boy from Vermont.
Vermont's courts are filled with bitterly contested divorces and child-custody cases that tear families apart. By their very nature, lawsuits create winners and losers. Sometimes, the parties aren't satisfied until they've taken their "pound of flesh" from the other side, even if the process hurts their children.
A long, drawn-out court battle between Bridget and James would have been ugly, painful and costly to everyone, including the state. Instead, it resulted in a win-win situation for everyone, particularly the young boy. How? Through a professional mediator -- a neutral third party trained in alternative conflict resolution. He was able to bring the two sides together and talk in an informal and confidential setting as part of a process that was faster, cheaper and less adversarial than litigation.
A growing number of Vermont judges now require that cases go to mediation before either party sets foot in a courtroom. These cases include many disputes in family court, small-claims court, probate court and environmental court, which is sometimes referred to as "family court for neighbors." And the list is growing: a new area for mediation opens up every few months. Increasingly, mediation is being used to resolve cases of guardianship of elders, who, like minor children, often don't have their voices and interests represented in a courtroom.
It's difficult to know how many cases go to litigation in Vermont each year. Although mediators, unlike lawyers, don't require state certification, the Vermont Mediation Association currently lists 65 members. Neal Rodar, a mediator and director of the Dispute Resolution Center at Woodbury College in Montpelier, has seen his caseload increase four to five times since he started 10 years ago. It's also hard to measure how much time and money mediators save litigants and the state, since most lawsuits are settled before they ever go to trial. But according to Vermont State Court Admini-strator Lee Suskin, a strong advocate of mediation for appropriate cases, the deals reached with a mediator are typically more satisfactory to all parties and lead to fewer conflicts and legal disputes later on. And, as Vermont Probate Judge Susan Fowler points out, "People don't get their emotional issues resolved through the court system.
Bridget is a slight, shorthaired woman whose Scottish brogue -- still thick after 30 years in Vermont -- makes her seem as unthreatening and grandmotherly as Mrs. Doubtfire. But like the pint-sized Yorkshire terrier that ferociously guards the door of her modest duplex apartment, Bridget has a lot of spunk. And, a lot of heartache.
She and her daughter Frances lived together for many years in the small central Vermont town where Bridget still works as a caregiver for the elderly. Each morning she walks to work; in the afternoons she picks up her grandson from school just a few blocks away.
"I was always in Ian's life," she says. "I was a grandparent, but I was also like a parent because his father was absent."
Bridget doesn't say exactly how her daughter died in November 2003. Frances was 28 and had been sick for about four years, she says. A series of ailments eventually took their toll, physically and mentally. "There were so many things happening and nothing was going right. Nothing," Bridget recalls wistfully. Just days after the funeral, Bridget received a phone call from an attorney representing James. He told her that James wanted to know "what's the best thing to do for Ian." "Of course, I was shocked," Bridget recalls. "There was no contact with James all these years. I never hated James. I hated what he'd done, but I've never actually hated him."
When they saw each other for the first time after that, James indicated he wanted to take Ian home to Virginia and raise him there. "I said, 'What do you mean? You don't even know him. He doesn't know you,'" Bridget recalls, still sounding alarmed two years later. "I was heartbroken. I was trying to deal with my daughter being gone a few days, and now my grandson is being threatened to be taken away? I said, 'No, this can't be!'"
Bridget didn't have much money, but her sons urged her to hire an attorney. She chose Bob Fairbanks of Montpelier. After reviewing her case, he explained to her the painful truth: Bridget's legal position wasn't strong. Even though she'd been a de facto parent to Ian for five years, Vermont law tends to favor the rights of a parent over a grandparent. "
If James was sincere in what he was saying, a fight between James and Bridget was not going to be in Ian's best interest," Fairbanks recalls telling his client. "Bridget understood this intellectually, but I think it was difficult for her to reconcile this with her emotional side."
Nevertheless, Bridget and her lawyer prepared for a protracted court battle. She gathered sworn statements from Ian's teachers, babysitters and family friends about her close relationship with her grandson. She hired a child psychologist to determine what was in Ian's best interest. Her four sons flew to Vermont from around the country to support their mother. And Bridget prepared for the worst.
"The first few months it was terrible, because I didn't know where anything was going," she remembers. "I'd wake up in the night thinking, 'My God! What's going to happen to Ian?' I'd envision him in bed at night crying for me, crying for his mum and his uncles and everything he's known. I had nightmares about it. It was horrible."
Shortly before the trial began, Bridget's attorney broached the subject of mediation. She had never heard of it. When her attorney explained the process, Bridget was deeply skeptical.
"I said, 'I'll tell you the truth, I don't know how this is going to work. James wants Ian. He wants to take him away. I want Ian because I don't feel James has a right to have him,'" she recalls. "'So, if we both want the same thing, you tell me: How can mediation possibly work?'"
James is 27, tall, clean-cut and physically fit, with a confident handshake and an amiable, boyish smile. He makes a good living working for an Internet marketing firm from his home, a roomy, new split-level house on a cul-de-sac about a mile from Bridget's apartment. He returned to Vermont last summer to be closer to his son. Although James grew up in this one-traffic-light town and his parents still live nearby, he admits it's not where he wants to spend the rest of his life.
James dated Frances off and on for about a year in 1998, when he was around 20. Their relationship was "unstable, tumultuous and very dangerous for both of us," he says. The two never lived together. Needless to say, the pregnancy was unplanned. In fact, James only learned about it after they'd split up.
"I felt that our involvement with each other was so disastrous as it was, that adding Ian to the equation would have been poison," James explains. "So I made a tough decision that I thought was in the best interest of my son. I left." James moved to the South to finish college. Over the next five years, he sent Frances some money for child support, but he had no direct contact with Ian.
However, on that early Sunday morning in November, when he heard Frances had died, the news hit him hard. "I remember just breaking down," he says. "And honestly, my heart went out to my son who I'd never met."
Within weeks, James was in Vermont meeting with Bridget, and not long after that he finally had his first encounter with Ian, who was then 5. "I'll remember that day for the rest of my life," James says, getting a bit choked up. "He took to me, I thought, right away. I remember him putting his hand on my leg -- he's a very shy kid -- and I was touched. Literally."
Soon, James was flying to Vermont every few weeks to visit Ian. At the time, he and Bridget still didn't know each other well. Even when Frances was alive, they'd exchanged little more than pleasantries. And early on, they'd butted heads, as when Bridget insisted on being present during his first few visits with Frances. Now, with the trial date quickly approaching, tensions between them increased. "Basically," James puts it, "you had two people who had every reason to hate each other."
For his part, James was familiar with mediation -- his father is an attorney. But while he knew a judge might side in his favor, he also realized it wasn't a slam-dunk case. After all, the child psychologist had determined it would be best for Ian to stay with his grandmother, at least for the time being. And James understood that if a judge awarded custody to Bridget, he might never get to live with his son.
"At that point, I think there was a decent chance for both of us that we'd lose this boy forever," James says. "And that was too much of a chance for me to roll the dice."
Enter mediator Neal Rodar. His first task, he explains, was to get to know James and Bridget individually and make them comfortable with him and the process. People come into mediation with a wide range of expectations and preconceived notions, he says. For example, many people confuse it with arbitration, where both sides present their case and an arbitrator issues a decision like a judge.
"I explained to them that if I do my job correctly, I will help them make these decisions and design what the outcome is going to be," Rodar says, "but I'm not going to be the one making those decisions for them."
A mediator's job is not only to figure out each person's position, but also his or her style of communication. "My job really is to ask questions," Rodar adds. "You need to help people hear each other, so you reflect back what you think you've heard until somebody says, 'Yes! That's exactly what I mean!' And then you're able to go on."
What qualities make for a good mediator? According to Susanne Terry, founder of Woobury's mediation program and a longtime mediation instructor, foremost is the ability to hear people on different levels simultaneously. What are the facts? What is the emotional context? What are people not saying? And how do people organize information in their heads?
Some of this is innate, but active listening can also be taught. Terry explains that mediators draw their skills from a variety of other disciplines, including psychology, law, politics, sociology and systems dynamics. In fact, many mediation students who train at Woodbury aren't looking to begin a new career but to improve their interpersonal skills in an existing profession, such as social work, counseling or office management.
Structured role-playing scenarios teach the tools of the trade. One of the most important skills, Terry adds, is "unlearning" natural tendencies to make assumptions, choose sides and see people as problems that need to be "fixed."
"The nature of mediation, and the beauty of mediation, is that we keep ourselves out of the way as a central character and find a way to ask questions that draw upon the thing that people already know or are able to figure out themselves," she says.
Once mediation begins, the mediator tries to distinguish someone's "position" from his "interest." A person's position is the outcome he or she wants to achieve. Their interest is the reason for the position. When a mediator can identify why the parties want a particular outcome, he can then help them reframe their dispute and identify common ground -- without declaring a winner or loser.
With Bridget and James, Rodar explains, the positions were obvious: Each wanted custody of the child. Rodar's task was to identify their common interest. In this case, it was deciding what was best for the child.
"Once I realized that," says Rodar, "[James and Bridget] allowed me to keep Ian in mind with all the questions I asked, and allowed me to hold that mirror up to everything they were saying and doing . . . They disagreed about a lot of things, but they kept their eye on the child."
Easier said than done. Bridget and James come from different generations, cultures, educational levels and economic backgrounds. And both began the process with a high degree of mutual distrust. Factor in the enormous emotional stakes and it was inevitable that the two parties would sometimes say and do things they didn't necessarily mean.
"I'm not very diplomatic," Bridget admits. "I sometimes just say what I'm thinking. But Neal is really quite diplomatic. He's very good at what he does." James agrees.
"I was very forceful and so sometimes Neal -- I don't want to say he was a softie -- but I think that was kind of how he had to be," James says. "Some- times I just felt like [saying], 'Neal, that's bullshit! Go tell her I'm going to take her ass to court!' But he'd spin it, and I'd just let him talk for me."
Both parties soon recognized, however, that Ian's life would be better in the long run if it included both his father and his grandmother. Eventually, they came to realize that this would mean Ian living with his father full-time. The final sticking point was agreeing on how soon that transition should occur. James wanted it to happen within a matter of weeks or months; Bridget, a period of years. Even after coming this far, there were times when both were ready to abandon mediation altogether and take their chances before a judge.
"I lost faith in the process a lot," James admits. "Even a couple of nights before the final agreement, I thought we were going to scrap everything."
In spite of these odds, Rodar's mediation skills kept the process on track. "Neal made you feel like he was working in your favor," James notes. "This is probably intentional, but I did feel like he worked in my best interest." Bridget says the same. Though she wasn't completely satisfied with the final agreement, she believes Rodar worked hard to make her satisfied with the outcome.
"For Ian's best interest, this is the best way," she says with a sigh. "If I had my way, James would still be in Virginia and he could come and see [Ian] on vacations and I could raise him. But that's not the way it's to be."
Rodar insists that his only loyalties were to the process itself. "I always tell people, and they understand, that it's up to them to decide when to call it quits," he says. "This was very emotional for both of them, things were difficult at times, [but] they did gain a lot of trust for each other through the process."
James and Bridget reached an agreement a few weeks ago -- just over a year after the mediation began. Beginning in July 2004, they met for a total of about eight hours over four sessions. In the end, they agreed that James will assume full guardianship of Ian in December and live with him seven days a week, starting in March. James agreed that he will not leave Vermont with his son before June 2006. And both parties plan to review the agreement in June 2008, when Ian is 10. These terms are spelled out in a contract drawn up by Bridget and James' attorneys.
How often is mediation this successful? The answer depends upon your definition of success. More times than not, Rodar says, mediators get both parties to come to a resolution without going to court. And even when no deal is reached, mediation often helps the parties resolve some of the issues -- and gain a better understanding of the other side. "
I felt great about the mediation," James says. "I felt like we both made sacrifices for Ian and I have a much higher level of respect for Bridget . . . I do want her in his life. But I want her to assume the natural role of being a grandmother."
Of course, mediation is not appropriate in all cases, such as those involving domestic violence, a serious power imbalance between the two sides, or larger issues of social justice, such as race discrimination and toxic-waste dumping. As Woodbury College's Susanne Terry points out, "Would you have wanted Brown v. Board of Education to have been mediated? I don't think so."
Mediation isn't cheap -- a professional in Vermont can charge between $80 and $200 an hour, or as much as $1000 for a daylong session. But that's still thousands of dollars less than a lawsuit can cost, which is why many attorneys advise their clients to try it before pursuing other legal avenues.
Obviously, cost wasn't a motivating factor for either James or Bridget, although both say they're glad they didn't have to spend tens of thousands of dollars going to court and dragging each other's names through the mud. That money will be better spent on Ian's college fund, James points out.
"Oh, it's definitely best for Ian," Bridget says emphatically. "To me, it's not a perfect answer here, but on a scale of one to 10 that I can be comfortable with, maybe it's between a seven and an eight.
"And if there's another way," she adds, "I don't know what it is."