Mindful mediation: A warning not to be bullied into settlement

The mere mention of divorce can evoke a tangle of intense emotions – outrage, sorrow, apprehension, hopelessness. Amidst this emotional whirlwind, many couples turn to mediation as a way to navigate their separation in a collaborative manner. However, in this mutual pursuit of a smooth transition, lies a lurking danger: the mediator who shifts from being a neutral guide to a ruthless bully. You may envision entering a safe and unbiased space, only to be confronted with strong-arming, manipulation, and deceptive tactics that coerce you into agreeing to an unjust settlement. The idyllic depiction of mediation as a harmonious resolution process can quickly turn into a darker reality, especially when the mediator disregards their ethical duties and gives in to the brink of intimidation.

The subtle and invisible forms of coercion:

The bully mediator doesn’t wield a fist, but their weapon is far more insidious – power dynamics and emotional manipulation. Here are some of the tactics they might employ:

■ Bait-and-switch: Initially presenting themselves as impartial, they gradually shift their position, favoring one party and subtly disparaging the other.
■ The ticking clock: Instilling fear by emphasizing the financial and emotional costs of protracted litigation, pressuring clients to settle quickly, regardless of their comfort level.
■ Playing on vulnerabilities: Exploiting insecurities, financial anxieties, or fears for the children to extract concessions and push clients towards unwanted agreements.
■ The “bad cop, good cop” routine: Working in tandem with one party’s lawyer to create a hostile environment, making the client feel isolated and desperate for the “mediator’s good graces.”
■ Ignoring red flags: Dismissing legitimate concerns and objections, downplaying imbalances in power or control, and brushing aside any hesitation with an air of impatience or disapproval.

When mediation turns from peacemaker to bully:

When a mediator crosses the line and resorts to such tactics, the consequences are devastating. Clients, instead of feeling empowered and in control, are left feeling:

• Violated and manipulated: Their trust in the process and the neutral role of the mediator is shattered, leaving them feeling powerless and voiceless.
• Emotionally drained and pressured: The stress of being bullied into a settlement takes a toll on their mental and emotional well-being, exacerbating the already difficult situation.
• Resentful and angry: The feeling of being unfairly pressured can fester into resentment towards both the mediator and the other party, hindering any possibility of future cooperation.
• Financially vulnerable: Accepting a subpar settlement due to bullying could have long-term financial repercussions, potentially jeopardizing their future security.

Remembering your rights as a client: you are not obligated to settle

Always bear in mind that in the process of mediation, you are never obliged to reach a settlement. A mediator’s proposed agreement is not a requirement for your acceptance. You have the right to:

■ Walk away at any time: The process is voluntary, and you can choose to exit if you feel unsupported, pressured, or uncomfortable.
■ Voice your concerns: Speak up if you feel the mediator is showing bias or not meeting your needs. A skilled mediator will actively listen and adapt their approach to promote fairness and inclusivity. Take ownership of your role in the divorce mediation process and fully engage. Come prepared to share your thoughts, worries, and requirements, while also being open to understanding your spouse’s point of view. Be willing to collaborate and find compromises, and be open to exploring various options and resolutions for each matter. Avoid being passive or combative, and instead communicate assertively and respectfully.
■ Seek support: Don’t hesitate to reach out to your lawyer or other trusted advisors for guidance and reassurance. You don’t have to navigate this alone.
■ Choose a different mediator: If you feel the current mediator is not a good fit, you have the right to seek out another one who better aligns with your expectations and comfort level.
■ Have a solid understanding of your wants and your flexibility: Make sure you have a firm grasp on your priorities and objectives for the divorce. It’s important to know what matters most to you. Additionally, recognize the areas where you can be flexible and make compromises, as well as the non-negotiable issues for you.
■ Review and finalize the agreement before signing it: You should not sign anything that you do not understand or agree with, or that you feel pressured or coerced into signing. You should take your time to read and understand the agreement, and to ask for clarifications or changes if needed. You should also consult your lawyer before signing the agreement, and have them review and approve the agreement.

Finding a mediator committed to ethical practice:

Not all mediators are prone to bullying tactics. Many ethical and skilled professionals understand the importance of creating a safe and empowering space for all parties involved. When choosing a mediator, look for:

• Relevant training and experience: Ensure they have specialized training in mediation, particularly divorce-related mediation.
• Strong ethical code: Research their professional background and affiliations to understand their commitment to ethical practice, especially a mediator that has received training in trauma-informed mediation practice.
• Client testimonials: Seek out feedback from previous clients to get a sense of their approach and effectiveness.
• Transparent communication: During the initial consultation, discuss their mediation style, their understanding of power dynamics, and their commitment to ensuring both parties feel heard and respected.

At present, our South African legal system lacks clear guidelines on imposing costs against mediators and lawyers who coerce clients into settlements. However, examining international legal precedents suggests that if an attorney fails to adequately prepare their client for mediation and pressures them into a settlement, a court may deem them negligent and award compensation to the client. This was evident in the recent Canadian case of Raichura v Jones, 2020 ABQB 139, where the lawyer was held accountable for an impressive sum of $131,939 in damages. In essence, this case serves as a cautionary tale for lawyers, fearing the potential consequences of negligence in mediation.

When mediation is conducted in an ethical manner, it can serve as a formidable ally in your journey through divorce or any other challenge. It promotes dignity and fosters collaboration, paving the way for a smoother process. However, it is important to recognize the potential for exploitation and to prioritize your well-being at every step. Remember, as a client, you have the right to be heard, respected, and empowered in the decision-making process. If a mediator does not uphold these principles, do not hesitate to seek an alternative facilitator who is dedicated to ethical practice and collaboration. This will lead you towards a resolution that is fair, sustainable, and aligned with your personal values.

Written by Eugene Opperman (B.Proc. LLB.) (LSSA L.E.A.D., ADR Network, FAMAC) , a legal practitioner and accredited mediator. 10 February 2024.