Family Law Mediation in Oregon — Everything You Wanted to Know, But Were Afraid to Ask by Julie Gentili Family law mediation, as it is practiced in Oregon, is a complex organism. There are many layers, options, opinions, processes, etc. To paraphrase Winston Churchill, it’s an enigma wrapped in a riddle, perhaps there is a key? You don’t know what you don’t know. Let’s correct that. For our purposes here, we will presume judicial settlement conferences are mediation. If you ask most private mediators, the vast majority will say judicial settlement conferences are not mediation. I firmly disagree with that assessment. A mediator needs to be both neutral to the parties and to the outcome and does not hold decision-making power. This does not mean, however, that the mediator needs to be neutral in the mediator’s analysis of each party’s positions; hence my position judicial conferences are mediation. Mediation has many forms and ranges from evaluative on the far right of the spectrum to transformative on the far left — both are mediation. Here is a quick summary of the different mediator styles: Transformative. This is a form of mediation where the goal is to solve the short-term problem and transform the participants under the presumption the transformation will prevent a similar problem from occurring in the future. Even mediators would shorthand this form of mediation as woo woo. Your avatar for transformative mediation wears Birkenstocks with socks. Interest-Based This is a form of mediation where the parties’ underlying interests are uncovered by the mediator and then the solution is built around the parties’ interests, not the problem. Most mediators in Oregon were trained in this model. Your avatar for interest-based mediation wears sensible flats or cushioned soles. Facilitative This is a form of mediation that borrows from all mediation models. A party may need a little bit of interest-based and a little bit of evaluative. This is the kitchen sink style of mediation. Full disclosure: I practice a facilitative approach to mediation. Your avatar for facilitative mediation’s footwear is dependent upon the weather because they are pragmatic. Evaluative This is a form of mediation where the mediator tells the parties what the mediator thinks about each party’s position in the dispute. Most judicial settlement conferences fit into this category. No one would categorize this form of mediation as woo woo. Your avatar for evaluative mediation wears dress shoes. Let’s dive into the different mediation processes: Joint session In a joint session mediation process, mediation is held with the parties, the parties’ attorneys (if attorneys are attending and the mediator in the same room or the same video conference platform. (I will refer to video conferencing as Zoom for ease of writing). Private break-out sessions can occur, but the main focus is to keep everyone together. The advantage to this process is very little gets misunderstood by the parties or the mediator, which happens quite frequently in shuttle mediation. It’s quicker, more efficient and more likely to solve the problem. The disadvantage to this process is that parties, when given the choice, rarely choose joint session mediation. Why? It’s uncomfortable to be face-to-face negotiating JULIE GENTILI is the President and attorney-mediator at Mediation Northwest Oregon. She is a private mediator, practicing attorney and mediation trainer. You can find her at 590 Pearl St., Ste. 232, Eugene, OR 97401. She can be contacted at 541.484.1200 or Julie@MediationNorthwest.com. See Family Law Mediation p. 40 39 Trial Lawyer | Summer 2024
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