In what types of cases is conciliation a better choice than mediation?
Most people are familiar with mediation.
A trained professional creates a safe, confidential and neutral environment where opposing parties can frame their issues and come to agreements in order to resolve pending cases and issues.
In mediation, agreements almost always require compromise by both parties. It is important for the mediator to encourage opposing parties to express themselves fully by reframing issues, promoting active listening, considering both traditional and creative options. It is also important that a mediator be well-versed in the law in order to guide parties as to legally enforceable criteria.
In all of the respects identified above, conciliation is exactly the same as mediation. The difference between the two methods is that a conciliator is expected to express an opinion, whereas most mediators especially in divorce and family law mediations, choose not to express an opinion. Conciliators tend to use a more directive style as compared to a mediators’ more facilitative approach.
A conciliator will carefully consider the parties’ positions on each of the issues presented. After giving parties the opportunity to state their position and all of the factors which support their position, a conciliator will provide a case evaluation and, based on the conciliator’s experience, advise the parties as to what a judge may decide after hearing the same issues presented or will offer a common sense resolution for the parties to consider.
It is important to note that a conciliation session is not the same as an arbitration session. Although the conciliator will offer suggestions on how to resolve issues, the conciliator’s suggestions are merely recommendations and not binding decisions. Even if a conciliator can not resolve a case, their intervention can be very helpful with case management. A conciliator (or a mediator) may suggest next steps in order to move the parties towards resolution.
In what family law situations is conciliation a better choice over mediation? In my experience mediation works best for people who want to agree and intend to agree. Couples who may need help framing and reframing the issues, who need advice on how the courts handle certain issues and who seek guidance on how to put together their agreement are perfect couples for mediation.
Couples in high conflict may benefit best from conciliation in that being told how to proceed may encourage an agreement. Couples who are otherwise not involved in high conflict but who are unable to compromise from firm positions around certain tough issues may also fare better with conciliation. Having a neutral professional advise the opposing parties on what a judge may rule or who will recommend the preferred way to resolve a problem may make all of the difference that is needed to avoid a lengthy and costly trial.
During a recent conciliation, a young very involved father was arguing with the mother about his participation in the child’s medical appointments. His work schedule is not flexible, and it was often difficult to make appointments when he could attend. The conciliator pulled out a cell phone and told the couple to use the technology they own. If father cannot make an appointment, mother should notify him of the date and time of the appointment and have him join in by speakerphone. The protocol was once at the appointment, mother was to obtain permission from the doctor to use her cell phone to allow father to join in. This is not a solution the parties were able to come up with on their own, as they were too involved in their ongoing arguments. The conciliator provided a concrete solution to a problem that has been causing many frustrations, accusations and threats. Of course, this is not a solution that would come from a judge. But one which prevented them from going before the judge to resolve the issue of joint legal custody
In the Hampden County Probate and Family Court, trained conciliators are available free of cost at almost every pretrial conference session. Conciliation is also available by referral from the court at no cost for 1 & 1/2 hours. Attorneys and parties should take advantage of this opportunity to resolve the more difficult cases. While voluntary assistance is available by court referral, each conciliator is available to continue working with the parties at their individual hourly rates. As the conciliators referred by the Hampden County Bar Association are also Attorneys, the rates charges will be the same as attorney rates.
In Hampshire County, conciliators are available on Tuesdays from 1:30 p.m. to 3:30 p.m., with the exception of “NO” session on the fourth Tuesday of every month. Ideally, two conciliators will be scheduled for each Tuesday session.