When Anxiety About Having the Conversation is Worse than Having the Conversation Itself

Have you ever felt so misunderstood and frustrated by someone in your life that you simply stopped communicating with them? Have things ever improved from there?

Often the point at which conversation halts is exactly the point at which it should really continue. It can mean it's time to listen more, and speak less, but closing the proverbial door altogether is seldom justified.

I mediated a case recently where the parties on both sides had constructed elaborate narratives to justify why each was a terrible human being. In reality, each side felt grossly misunderstood despite all parties trying to act with good intentions. It just wasn't a good fit.

Together, we quickly discovered that all everyone wanted was to be able to walk away from the situation and make a clean break. Easy enough. Once we determined that, the terms practically wrote themselves, and we had a signed agreement. Instead of expensive, ongoing litigation, everyone was able to walk away with a tidy, fair resolution, and emotional closure to a situation that had dragged on for three years.

When to Call It Quits: Mediation Doesn’t Serve All Clients

As a mediator, I like to think that alternative dispute resolution is the best kind of conflict resolution for most disputes (call me biased!).  But, occasionally, a case comes through the door that should not be in mediation, and would be better served by lawyers, law enforcement, or mental health professionals. So while I am always hoping for the mediation sweet spot of compromise, collaboration, and closure, here are a few types of cases that an ethical and savvy mediator should avoid (or at least proceed with extreme caution), and refer to the right professional, instead:

1. Any case with a significant power imbalance should most likely not be in mediation. The parties should be on roughly equal footing intellectually, and there can be no element of intimidation or coercion. Sometimes a slight imbalance here can be corrected by ensuring the party at a deficit has legal representation to help with their decision making process, but not always.

2. Domestic violence serves as an excellent example in which even a represented party may not feel adequately empowered/autonomous. Even if the victim has an attorney, he or she may still be unable to make decisions without feeling the undue influence of the aggressor. In cases like this, it’s best to have the victim represented by an attorney, and walk away from mediation. Depending on the severity of the situation, law enforcement involvement may be warranted if the abuse has been hidden.

3. Any case where the parties have no trust and it seems a remote possibility they will be able to rebuild any semblance of a working relationship does not belong in mediation. Sometimes, a mediator needs to calmly look at the level of conflict and distrust in the room, and decide for the benefit of all concerned that mediation is not going to work. It can be a welcome challenge to help clients rebuild their faith in each other and steer them towards resolution (and very satisfying to work successfully through this challenge as a mediator), but it’s worth keeping in mind if the clients would be best served by having their respective attorneys hash out the details, saving time, expense, and the aggravation of a mediation that is not making progress.

A conscientious mediator needs to be quite certain that the parties are fully informed and empowered at every step along the way to a signed agreement. Otherwise, a mediator runs the risk of having the agreement invalidated and being on the hook for malpractice. Both of these unpleasant scenarios can be prudently avoided with a few choice questions during the initial client interview (domestic violence screening, analysis of the relationship between the parties), and a careful monitoring of power dynamics as the mediation progresses.

Mediation on the Radio!

Last night, Nicole Gesher was a guest on Chuck Finney's "Your Legal Rights" radio program, broadcast live on KALW's 91.7 FM. It was an interesting conversation, and a neat experience. Hope you enjoy!

You can listen to the show here. 

Mediation as a Mirror: Using the Process to Help Clients Find Clarity

Sometimes, parties will seek mediation in search of internal clarity. The stated reason for scheduling a session may be very different from the desired result. In these cases, the mediator’s role should be one of gentle probing and guidance to help the parties reach a transformational moment of aligned purpose.

I recently met with a couple ostensibly seeking a divorce. They were ready to proceed, very organized, and, it seemed, motivated to move through the process as quickly as possible. However, when we met, it became clear quite quickly that neither of them wanted to end their marriage. One party simply wanted the other to commit to marriage counseling so that they could resolve some longstanding issues in their relationship.

The climate in our session had taken an interesting turn. As a mediator, my role had shifted. Rather then helping this couple move their divorce forward, my responsibility lay with ascertaining whether both parties wanted to stay in the relationship, and if they did, would they both agree to attend counseling?  As we proceeded, both parties expressed a desire to stay in the relationship and a willingness to attend counseling.

When working with widely different personalities and perspectives, in an environment where the emotional climate can change as quickly as the natural one, a mediator has to be nimble.  We have to sense emotional storm clouds gathering in the distance, keep the conversation moving forward, and dispel unproductive conflict with a carefully (and quickly) chosen word or joke.  

With these clients, it became clear that their stated intention for mediation (divorce) was not their actual goal. My clear path forward was to support them in their chosen path. They needed me to facilitate an honest conversation that made it clear they still loved each other and wanted to try again to make their relationship work.  In this instance, mediation served as a mirror for the parties to better understand their own goals. 

Recent Speaking Gigs at UC Hastings and Boalt: Refreshers on Why I Love My Mediation Practice

Over the last few months, I've had to the honor to speak as a panelist at both the Mediation Clinic at UC Hastings, and at a Mediation class at Boalt, UC Berkeley's law school.  Both panels involved sharing how and why I became a mediator. The students in both settings were engaged, and asked some interesting questions (What can you tell us about mediation that we couldn't just read in a book? What's it like to have to settle a case in forty-five minutes in Small Claims Court? How do you deal with power imbalances  What's it like to mediate a case where the parties are represented?).  The other panelists, a California State Mediator, and a private practitioner who edits a mediation website, added variety and different perspectives that I enjoyed.  Speaking for these students reminds me how passionate I am about my chosen profession, and how lucky I am to be able to help parties come to collaborative solutions. Thanks for having me!

Celebrity Divorce and Mediation: Winning!

Let's face it. Life as a celebrity couple can be stressful. Often, fame will take its toll on a couple, and the marriage will end. But a dissolution doesn't have to be messy, even in Hollywood.

Katy Perry and Russel Brand are getting a divorce amicably, through mediation. Vicky Gunvalson, one of the Real Housewives of Orange County, is exploring a separation from her husband Don through mediation. Camille Grammer and Kelsey Grammer are using a mediator to navigate their ongoing custody dispute. With the possible exception of the last couple, these negotiations are proceeding smoothly, and perhaps most annoyingly for US Weekly readers, without heightened animosity or drama. Perry, Brand, and Gunvalson speak of their former spouses with respect and with a sincere regard for their well-being and privacy. What a notable change from the train-wreck celebrity divorces we're all grown accustomed to watching with morbid fascination!

Even in high-profile divorces, mediation makes a collaborative, respectful marital settlement agreement possible. Imagine what it could do for couples who aren't targeted by the paparazzi?!

One Mediator’s Advice for Attorneys Representing Clients in Mediation

Life as an attorney teaches some firm and hard-won lessons. Be assertive! Advocate! Never let the other side get away with anything! And of course, when representing a client in mediation, the same rules should apply – right? Well, not always. Too many times I’ve seen highly skilled attorneys run a mediation right into the ground, simply because they are unable to table their agendas long enough to understand what their clients really seek to gain from the alternative dispute resolution process.

It’s not really our fault. Law school and law practice teach us to be zealous, guarding our client’s interests from attack and launching our own offensive at the same time. But at its core, mediation is about collaboration. In order to build an effective agreement, there must be a baseline of trust and respect between the parties (and between their attorneys). This can be difficult in a case that has already entered litigation, but then how much more vital is it for the attorneys to set the collaborative example for their clients? And don’t forget (should the mediation take a turn your client cannot abide) – each side always has the option to walk away from the mediation table – but conversely, all parties should enter the mediation room in a good faith spirit of negotiation.

The best advice I can give an attorney representing a client in mediation is this: have a candid conversation with your client about their goals, determine where they are comfortable with compromise, and ask your client if there are any non-negotiable items. Ask for breaks from the mediation as needed to check in with your client. Let your client speak if they are comfortable with voicing their own concerns. Brief your client on the collaborative nature of mediation, and encourage them to enter into the process in good faith. Fully and honestly brief the mediator about your client’s stance, and indicate what information should remain confidential. And, perhaps most importantly, lead by example. Mediation is a personal process that has great power to resolve conflict – if it is allowed to be personal.