Mediation crash course
Disclaimer
I had a really bad experience with mediation so I’m going to be pretty negative about it. I hope that when reading this, people can respect how it is possible for mediation to be a really good option if both parties participate in good faith.
When and why?
Mediation was mandatory for my circumstances. As soon as Japan’s Central Authority approved my application under the Abduction Convention, I was offered five free, monthly mediation sessions. I was excited and optimistic about my prospects. In theory, mediation is a great idea, if both parents can cooperate.
Good mediation can definitely promote collaboration, compromise and innovation. Having been through overseas family court proceedings, they can be a bottomless hole for your money, with no winners. I understand why mediation is such a good idea in theory. However, my experience with it was not great, and there’s many traps.
I don’t want to scare people away from mediation. I think everybody should try it out in good faith and go into it with an optimistic mind (you never know what will happen). However, if it goes downhill really quickly, then I think you also need to know when to quit.
Common features of mediation
Mediation style
For me the style was basically a shuttle negotiation session. My ex-wife and I never saw each other or spoke directly and the mediators relayed messages between us. Also, translation significantly slows down the process. Purely from a structural perspective, I’m not a fan of this style because it wastes so much time. One can participate for 2 hours and get maybe 20 minutes of actual content when you factor in things like introductions, housekeeping and formalities.
I’ll also note that this is much like of a business-style negotiation. Parties can actively say ‘I’ll tell you this, but don’t tell the other party, okay?’ Also, it is possible for the mediators to side with one party because you can’t see what they’re saying when they’re talking to the other party. Thus, they could quite frankly say ‘look we’re with you and we’re gonna smash this stupid foreigner, he’s getting nothing… absolutely nothing’ without any scrutiny.
My only other comment is that this style can easily become adversarial. In my case, one of the mediators acted like a prosecutor and constantly questioned my character. This made collaboration impossible. Also, it gave the abductor a gratuitous free kick at me, without any adverse consequences. Each session she would create fake letters and e-mails from unknown sources and a mediator would grill me about whether I had created them. While burning inside, all I could do was keep my cool and remember that one minor outburst could have me wrongfully branded as a violent person and possibly cut off forever.
Who are the mediators?
Easy answer – mediators are lawyers.
In my experience, there were two mediators. One a respected corporate lawyer (Mediator A) and the other a prominent female rights activist (Mediator B). My ex-wife chose the mediators, probably based on online advice from other abductors. I did not ask for either to be removed because I had no reason to doubt their professionalism.
What were my mediators like?
Respectfully, I do not think this was a good pairing. Mediator B studied English in America and used her superior English skills to dominate the proceedings. She behaved like a prosecutor, took my ex-wife’s side and grilled me with details about my ex-wife’s fake e-mails, detailed in my post about data security. Three of my five sessions were wasted talking about these e-mails (which were so fake and so obviously crafted by my ex-wife that it was insulting being accused of writing them). Mediator B constantly berated me, spoke over me and questioned my character – she was advocating for my ex-wife… ruthlessly, and it was like a pressure cooker having to stay calm/composed in her presence.
Meanwhile, Mediator A did nothing. He struggled to stay awake, and on one occasion he shamelessly fell asleep. Occasionally he would ask a completely irrelevant question, then pretend to write down a lot of information. He was a muppet on display…
How did mediation end?
Poorly.
During the third session, I was tired. Each session reminded me of how badly my life sucked. I’d been bashed by my ex-wife, my daughter had been abducted and now I was being treated like a criminal on trial. It was extremely stressful and there was no cooperation from my ex-wife! Mediator B completely ignored the fact that my ex-wife had an assault conviction, was mentally ill and had abducted our daughter. I needed a lawyer because I was going to crack if I had to go through any more of this. I was already seeing a psychologist twice a month to deal with the stress, and it was taking a significant toll on my life.
Mediation ended with no serious solution on the table. Mediator B offered what she thought was a ‘very generous compromise’. This was that I could talk to my daughter by Skype each month, but I couldn’t tell her I was her father. All I could do is tell her I was an ‘English teacher’ and deliver her English lessons. I scoffed at this and my lawyer made it clear to the mediator that this was completely unacceptable.
My greatest source of dissatisfaction with these mediators was that they didn’t have the skills to mediate with my ex-wife. I’ll flesh this idea out later on. However, I think that the suggested ‘compromise’ endorsed child abduction and the adversarial style was inappropriate for such a sensitive matter. I think that having mediators from social service backgrounds and the like would have been highly beneficial.
Who should I use?
The internet has blacklists for lawyers. However, I wouldn’t buy into them too much (which is why I have not named my mediators). Unfortunately, international child abduction does not have many ‘winners’. I think it is important to go into mediation with an open mind and be optimistic rather than buying into negative experiences. I respect this might seem hypocritical, but I think it is important to approach all processes/proceedings in good faith.
That said, I think you should use a lawyer for mediation. Ideally you shouldn’t have to. Ideally, mediation should be collaborative. My experience is that it’s a quasi-legal process that can easily become adversarial. Navigating Japanese law is very difficult. There’s a saying amongst lawyers that if you represent yourself in anything then you’ve got a fool for a client. If your child has been abducted then you are emotionally involved and law isn’t about emotion, it’s about keeping a cool head so that you can work through things logically.
One person who I spoke to was proud that he entered a Japanese family court and told the judge ‘you are corrupt, you’re biased against foreigners and you have ruined my life’. I think that if nothing else, having a lawyer will stop you from making a fool out of yourself like this. This is important because if you slip up like this, you could seriously impact the outcome. So please… get a lawyer for mediation.
Final words on mediation (for now)
Mediation can be a very draining, adversarial process. However, it is free and might just work. Everybody has different circumstances and (for example) some of my friends have Japanese ex-wives who are far more cooperative than mine. Don’t assume it will be bad and don’t go in expecting a war. However, be prepared for one, know your limits and don’t be disrespectful. Mediators are there to help, even if it doesn’t seem that way. My hint is to be honest with signs of stress. If you are stressed out then I think cutting the mediation short is much better than having an angry rant. Angry rants are bad!
In coming weeks I will flesh out some of the experiences I shared today, so feel free to contact me if you have any specific questions. Also, this post was a little negative, so I’m going to try to find something positive to post about in my next post.
