How Do You Feel About the Bottom Line?

"Haven't we already decided this?" I thought to myself as my clients launched into a discussion about an issue, that, to my mind, we had already resolved weeks ago. Yet again, I was about to relearn the lesson of client-centeredness, originally imparted to me in law school. If I am going to remain dedicated to the concept of facilitative mediation, it meant we were going to hash out this same issue, again, and perhaps with a different result.

But at what point is it my job to direct the mediation, preventing us from going over and over the same issues time after time? I think the answer is, perhaps unsurprisingly, a fine balance. I don't want to hijack the mediation agenda, but it is probably my responsibility to keep things moving. I bill by the hour, and I also have my clients' budgets on my mind - I try to be respectful of their financial situations. I've found that when I bring the amount of time and money that we've spent on any given issue to their attention, they quickly become more focussed and directed. While I want to encourage discussion, I also feel it's my duty to enable efficiency.

However, this is also potentially their only chance to be heard, in a real way, by the other party. So once again, it's a thin line between active listening and over-validation. And I try my best to let my clients decide whether or not we're ready to move on - I just want to make sure they have all the information to decide whether or not they want to linger.

Crafting a "Graceful End" to a Marriage

In last Thursday's New York Times "Home" section, one of the articles on the front page, "Within Arm's reach," discussed a recent divorcee's quest to remodel her tiny (600 square feet!) new apartment to maximum effect.

Now that's charming, and it's fun to see how her team of interior designers helps her to achieve a beautiful end-result, but for me the really interesting part of the article is here:

She also said that when she and her husband of some 20-odd years divorced a few years ago, they used a mediator because they were determined that their marriage would have a "graceful end."

I couldn't agree more. Often, when I'm mediating a marital settlement agreement, I want to ask the parties, "Don't you want to honor what you had?!? You married this person for a reason, right? They were there with you for how many years? Don't you want them to walk out of here with dignity and respect intact?"

Usually, the answers to those questions are yes. Most people will choose mediation when they are still able to have a conversation with the other party, when they want to end things kindly and fairly. While it's true that some folks end up in mediation because it is cheaper (and that's true), it also requires a baseline of respect and the ability to compromise and forgive. And what better way to celebrate the graceful end to your marriage then, oh I don't know, renovating your beautiful new private retreat with all the money you saved?

Rebuilding Trust: Fixing What Has Been Broken

Trust. It's a key component to any healthy relationship, be it personal or professional. And perhaps particularly important when the relationship encompasses both of these spheres. This is an issue I've come across several times in recent mediations - married couples who are also business partners, who have become unable to communicate effectively about their business. Very often, this frustration bleeds over into their personal lives (surprise!), and makes life extremely stressful at home as well as at work. While the couple may not seek a divorce, something has got to give - this level of stressful frustration with a spouse/business partner is not sustainable.

But, often, the history of the couple is so littered with broken promises, old hurts, and damaged faith, that reinvesting in the relationship in a real way is scary and may even feel foolhardy. How can mediation change this dynamic when they've tried to fix things on their own so many times before?

The answer, as I like to flatter myself, is that they are now accountable to a third party. In the past, the couple may have struggled to communicate; one party may believe they are clearly expressing themselves when the other party understands something completely different.

In mediation, I help the parties to draw up a contract that details their respective responsibilities. It clarifies the communication process, and leaves no doubt about about whom is responsible for what. It forces them to discuss, in detail, and with specificity, what their expectations are. With a well-written agreement in place, it becomes possible to rebuild trust by sticking to the terms of the agreement over time. And that's a beautiful thing.

Mentalization

I recently had the pleasure of attending a workshop about some of the psychological elements in mediation, by Dr. Ilene Diamond, and sponsored by Community Boards.

This presentation was fascinating for me. One of the main ideas that we discussed was "mentalization," which denotes a person's ability to understand the mental state of another without overt verbal explanation. This includes the ability to feel empathy towards someone else, and the ability to understand a situation from another's perspective.

When a person has poor mentalization skills, it is very difficult for them to participate collaboratively in a mediation. They are unable to compromise, since they are unable to see the relevant issues from anyone's point of view but their own. Moreover, they have a sense that they will be "losing" if they make any concessions.

But the most interesting part of mentalization revolved around the formation of this skill set, which starts extremely early in life. In infancy, we learn from our parents that it's possible to intuit how someone else is feeling - they anticipate our needs, look after us, and connect with us before we can verbalize our needs. From them, we learn that we can relate to other people in this way. Sadly, babies whose parents are less attentive, or perhaps negligent, never learn these skills. While they can be taught later in life, the foundation is laid in infancy. Amazing.

So how to work with a party who has poor mentalization skills? Often, the best approach is to cast the relevant issue in selfish terms, i.e., "If you let this person have this one thing, it really is better for you because...." If the poor mentalizer can see self-interest in a decision, it will be more compelling for them.

It's All About the Clients (Or it Should Be)

Today I faced a novel situation in a divorce mediation. After getting to know my clients fairly well over the last few months, we are now beginning to enter the last phase of the process, and their divorce will soon be final.

While I felt a sense of accomplishment that we were drawing their case to a close, and that the marital settlement agreement was equitable, and well-written, it dawned on me that today might not feel quite the same for the other people in the room. While one party was visibly smiling, and quite calm, the other had started to cry quietly. In all my efforts to be fair, listen to my clients, and honor their wishes, I had forgotten that this conclusion marks the end of their marriage in a concrete way, and was likely to cause pain. Disappointed in my own lack of empathy, I offered what comfort I could, but it was a sobering moment, all the same.

I learned a valuable lesson today, and I will try to remember it for the future: it's really not about the mediator - it's about the clients. I did my job, but that was no more than was expected. I also needed to be looking out for the emotional needs of my clients. As the mediator, I really shouldn't dwell on my own work, or seek approval; rather, my objective should be to offer comfort where I can, while providing highly competent services, and giving my clients the respect and attention they deserve.

Constructing an Effective Agreement in Mediation

What makes an agreement effective? What can the mediator include that will help to ensure that the agreement is lasting, realistic, and appropriate? What should parties seek to include to help them implement the agreement in good faith?

While each mediation is different, a good rule of thumb to follow is to make the agreement as specific as possible, so the parties know exactly what responsibilities they have accepted, and how they are expected to act in the future. Specific means including dates, times, exact amounts, methods of exchange, potential remedies, and a host of other concerns that may seem like overkill in the mediation.

However, including these kinds of details minimizes potential confusion in the future, and also makes it difficult to disagree over the meaning of certain terms in the agreement later. For example, in a divorce mediation, it's very important to specify how much support will be paid, by whom, at what point each month (every second Tuesday, or bi-weekly?), and by what method (electronic transfer or check?). These are the sorts of points that can ruin a carefully crafted agreement, simply because the parties have no clear way to move forward.

It behooves the mediator and the parties to consider exactly how the agreement will work after the mediation is over - after all, the mediation is supposed to be a forum for the resolution of issues, not the creation of new ones. A tailored, specific agreement helps to curtail future problems by clearly addressing exactly how the agreement will be implemented, and how each party will abide by the terms of the agreement.

Why get divorced?

Very interesting article in the New York Times explores when being separated suits everyone's purposes, and, when it just doesn't work:

But long-term separation can create big problems. If a couple isn’t divorced, their lives are still legally and financially intertwined. If your estranged husband goes on a spending spree, you’re responsible for the ensuing credit card debt. If you win the lottery, that’s community property. Finances can swing wildly, creating an alimony boon or a bombshell should one partner eventually want a divorce.

“I just had a situation where after 15 years of separation, the wife wanted to remarry,” said Elizabeth Lindsey, an Atlanta divorce lawyer. “But over the years, his assets had completely dissipated.” The wife would have profited from divorcing earlier.

A separation can also go on longer than anyone anticipated, even until death, leaving a mess for survivors. In New York State, for example, a spouse, even if separated, is entitled to a third of the partner’s estate.

There’s also the risk that you could lose track of your erstwhile partner altogether. “We see cases, usually with foreign nationals, where the husband goes back to the Philippines, and the wife wants to marry James but she’s still married to Ted,” said Steve Mindel, a managing partner at the Los Angeles law firm Feinberg Mindel Brandt & Klein. Judges now often require that a professional be hired to locate the spouse, to facilitate the divorce.


http://www.nytimes.com/2010/08/01/fashion/01Undivorced.html?pagewanted=1&ref=style:

Out-Maneuvering the Manipulative Party

I've discussed this briefly before, but power struggles are one of the most interesting and challenging aspects of mediation for a mediator, and especially this one.

When one party is more knowledgeable of the law or the process at hand, they may turn often to the mediator for reinforcement that they are "correct." Over time, this can result in the other, less well-informed party feeling trampled, or often defeated. How to navigate this scenario with care? Even if the knowledgeable party is technically correct, I try to remind both parties that one of the reasons they are in mediation is that the alternative dispute resolution process allows for a more creative (although always legal) solution.

This maneuver usually helps me to sidestep declaring them correct, and reminds them that their interests will be far better served if they engage with the other party, rather than seek to display the twenty minutes of Internet research they have may have done in preparation for the meeting. A gold star from the mediator doesn't go very far when the parties can't have a meaningful exchange between themselves. Alienating the other party is not prudent, and yet this is exactly where this path will lead. Most parties in mediation are there to work with the person on the other side of the table - when the conversation turns to "right" and "wrong," things are almost certainly going downhill. I prefer to couch issues in terms of "fairness" and moving forward towards an equitable resolution together.

The law absolutely has a place in mediation; a sense of the law is vital to enable the mediator to provide context for any agreement that may emerge from the process, as well as to ensure that the parties are fully informed of their rights. In my experience, this legal background is perhaps best received when it comes from the mediator, and preferably is requested jointly by the parties.

Navigating Difficult Conversations: Divorce Mediations

While many mediations are emotionally charged, divorce mediations are perhaps the most contentious. Not only is a partnership being dismantled, but the parties are often distraught, emotionally bruised, and perhaps angry. In such a mediation, it is essential to navigate with care, lest one party feel slighted or ignored. I find it challenging to honor how one party is feeling without over-validating them, and thus risking the alienation of the other party. It's a tough balancing act, indeed.

When it comes to controversial issues like spousal support, I find it's often constructive to give the parties a reality check - I insist that they consult with independent counsel to understand that the agreement we are crafting is indeed fair. Once they realize that they're neither being cheated nor ignored, and are often getting a better deal than they would in Court, a once-dissatisfied party will often become much more amenable to the process, and begin to collaborate with their ex-spouse and the mediator to build a workable agreement.

Correcting the Balance of Power as a Neutral Third Party

The other day, I came across one of the stickier issues in mediation - an imbalance of power between the parties, when neither one would admit that this was the case. It's a difficult problem to navigate as a mediator when one party won't acknowledge that the proposed solution is actually catastrophic for them.

Why would this happen? Why would anyone allow themselves to be pushed into an agreement that didn't actually work for them? The answer, unfortunately, is because they are often too scared or too timid to speak up and serve their own best interests. Why does this happen? Sometimes, it's the result of long-entrenched patterns of behavior, where one person has bullied the other for so long, and for so many years, that it's just the way they operate. Other times, the bullied party does not feel their position is justified, even if it is ultimately "just," or at least, reasonable.

Though I subscribe to a facilitative model of mediation (a party-driven process), I often find it difficult to hold my tongue when I see this sort of pattern emerging in a mediation. But what can I do as a mediator to rectify the process and navigate the discussion to a more productive place, without impinging on the autonomy/self-determination of the parties?

As a mediator, I am neutral. I can't advocate for one party or another, but it is my duty to ensure that no one signs an agreement that will prove to be untenable. So, while I can't push one party's agenda, I can ask tough questions to ensure that each person understands the ramifications of the disputed term, and also understands that it's better to walk away from the mediation than to leave with an agreement that is patently unfair (or even an agreement that they don't reasonably believe they can abide).

My goal is to leave parties with an agreement that will help them navigate their future interactions with dignity and respect, but failing that, I would prefer that they not set up an agreement that will almost certainly lead to failure or unfairness. In this sense, I represent the idea that no agreement is better than an unworkable agreement.

Mediation in highly charged crisis moments: The BP Oil Spill

Kenneth Feinberg has been tapped to oversee the administration of a $20 billion fund for claims arising from the BP oil spill in the Gulf of Mexico, as detailed in today's New York Times article:

"The fund will be administered by Kenneth R. Feinberg, the lawyer and mediator who ran the fund for victims of the Sept. 11 attacks and has emerged as a troubleshooter on issues like executive compensation and resolving claims for asbestos and Agent Orange victims....Mr. Feinberg will segue into his new role as the fund administrator, perhaps setting up shop in Louisiana, just as he is nearing the end of his stint as the government’s “pay czar” overseeing executive compensation at the nation’s biggest banks, a post created in response to public outrage at bankers’ bonuses after the financial bailouts of recent years. Besides serving as special master for the Sept. 11 Victim Compensation Fund, he helped in cases involving compensation for victims of illnesses related to asbestos and to Agent Orange chemical poisoning, among many others."

With such an environmental tragedy on our collective hands, mediation is a key aspect to healing the people who are most affected by the oil spill. It's heartening to see our government making use of an expert mediator to help rebuild and clean up the spill.

Patience as a Mediator

So often, it's tempting to want to jump in as a mediator, with a potential solution for clients. But, as a facilitative practitioner, it's sort of besides the point. Facilitative mediation allows the parties to drive the process, not the mediator. One of the reasons I feel so passionately about mediation is that, unlike a traditional legal setting (i.e. court), the clients are allowed and encouraged to build their own solution. The outcome is entirely in their hands, though the mediator can certainly offer guidance. It's a beautiful thing, really.

Staying the Course

Several times over the past few weeks, I've encountered people who are ostensibly engaged in a course of action that would seem to require a generally peaceful/positive attitude (i.e. yoga). However, while they are going through the motions they are so intent on doing everything perfectly that they lose the point of the exercise, snapping at other students, and otherwise spreading energy antithetical to that which they are supposedly seeking.

There was one interaction which the teacher quietly noticed. In response, she said to the entire class, "If you do every pose perfectly, but are mean-spirited, you are missing the point. It's so much better to smile through the difficulty, faltering, and yet always striving to do better."

I couldn't agree more. If we lose the essence of why we do what we do, then we probably shouldn't be doing it anymore.

I think this lesson translates well here, when examined through a mediation lens. Part of really listening to clients, really understanding them, comes from a deep-rooted desire to help, to heal, and to make whole. That energy can really only come from a place of sincerity.

Soon to be a Mediator at the Bar Association of San Francisco!

I am pleased to announce that I will soon be mediating through the Bar Association of San Francisco. Very exciting news!

To mediate or not to mediate

I got a phone call yesterday from a prospective client who is trying to recoup a relatively small amount of money from another party. After listening to his story, I asked him to consider whether or not it was actually worth it for him to pursue the claim. If he went to court, filing fees would quickly pile up, and if he decided to mediate, my hourly rate would quickly overshadow the original amount under dispute.

As a mediator, it's important to behave ethically when discussing options with prospective clients. While I love to mediate, I have to ensure that it's the best possible path for my clients to take. We'll see what this client decides to do, but I feel like I've fulfilled my ethical duty in this regard.