By Sheree L. Hoffman

MAY 26, 1998:  It was an early winter evening in 1992. I had just returned to the office after completing a two-day divorce trial. I was tired and frustrated with the system.

The case had involved the typical property divison issues: a 5,000-square-foot house in Memphis, a Florida condo, three late-model cars, some investments and personal property – even a parrot that could say, “Go Tigers!”

What bothered me about the case was the children, ages 7 and 12. The parents had been fighting over custody for two years. There were allegations of neglect and sexual abuse by each parent involving the children, who were the pawns and would, no doubt, suffer immediate and long-term consequences from all the conflict.

After the trial was over, I could not say I honestly believed either of these parents was the monster we attorneys had worked so hard to portray. What I saw was two loving parents who were both frightened to death and convinced that one of them had to lose the children.

Each was willing to spend thousands of dollars on attorney fees and each was willing to put the children through session after session of conferences with psychologists and social workers to “win.” Each parent was saying horrible things about the other to make sure the other parent would “lose.”

I knew in my heart there had to be a better way to resolve these disputes. In the summer of 1994, tipped by a former classmate then practicing law in San Francisco, I found that way: mediation.

Simply stated, mediation is the use of an impartial third party to help two or more individuals work out a mutually acceptable agreement to resolve a dispute. Typically, the disputing parties will meet simultaneously with the mediator to discuss the issues and problems.

During the first mediation session, the process and the expectations of the mediator are discussed. Litigation is stopped, assurances of confidentiality are extended, information is exchanged, and the mediator offers legal information – but not advice.

Mediation can work because people are in a safe environment where they can express their needs as well as their frustrations to each other and can retain control of the decision-making. A good mediator wears many hats throughout the mediation – including discussion leader, listener, and referee. After 14 years of being a trial lawyer, I am convinced that most of the time people want their day in court simply because they want to be heard.

In a courtroom battle, any decision rendered by the judge is probably going to make at least one of the participants angry. Someone wins the battle, someone loses. The loser thinks the judge didn’t make the right or fair decision and is angry enough to spend more time and more money to appeal to a higher court, a higher authority.

In mediation, each party has an opportunity, unrestricted by rules of evidence and procedure, to assert his or her point of view, discuss what each believes is fair, identify their personal needs, and, most importantly, if there are children, maintain rather than destroy their future relationship.

I firmly believe that individuals can and will, if given the opportunity and the appropriate setting, choose to make their own decisions about their money, their property, and their children. Mediation dissolves the environment of aggression, defensiveness, and the fear of losing, and replaces those negative feelings with positive feelings of personal responsibility and mutual understanding.

Best of all, besides resolving disputes, mediation can – for many – actually heal and provide hope.

(Sheree L. Hoffman is a Memphis lawyer and mediator and a member of the boards of directors of the Memphis chapter of the Association of Attorney Mediators and the Mediation Association of Tennessee.)

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