Self-Sabotage in the Mediation Room: And, How to Move On

Sometimes, we attribute motivations and intentions to those around us when they are simply not there. This may be our own projection of insecurity, or simply the accumulation of baggage we all lug around with us in our daily lives. Whatever the case, don't be too sure that you know where someone else is coming from. Until you actually talk about it, you really can't be sure.

However, sometimes, we do know how other people are feeling, or can predict that our actions will trigger a patterned reaction in them. And when we find ourselves in this situation, say, in a mediation, it would behoove us to avoid the hot button issue that you know will trigger an emotional reaction, right? The answer is not as predictable as common sense might dictate. Sometimes, we sacrifice progress and consensus building for the thrill of a cheap dig, and snatch at the self-destructive option. We make the comment, starting a cycle we know all too well. Why do we do this? That's probably a question that is more appropriate for a psychologist to address.

But in mediation, how do we recover from such a moment? How do we take a step back, and salvage the hard-won progress we've collaborated to build thus far? In my experience, it's important to call a cheap shot a cheap shot, but at the same time not to belittle the person who succumbed to the moment. After all, we're all human. We've all stumbled in this way before, and we will again. But it's important to recognize the mediation room as a sacred space that does not abide such behavior. We have to bring our best selves into the mediation room, and be prepared to compromise and work together.

So, OK. The person who has initiated this behavior has been called out. Now what? Both people are feeling exposed, maybe embarrassed. The mediator then has to bring everyone back to the task at hand, to continue the conversation. Maybe we acknowledge that there are many emotions in the room. An apology might be in order. But we return to the basic tenets of respect and civility that must guide the process. No one said mediation was going to be easy. But if you trust in the process, acknowledge each other's humanity, and learn to move on, you've got a fighting chance of crafting an agreement.

What are ways to ensure divorce mediation goes smoothly? (Quora)

Quora has become an important resource, perhaps particularly for those of us in the Bay Area. One question I came across recently asked for tips on how to ensure that a divorce mediation will go more smoothly.

The thread of answers provided common sense advice about how to interact with each other to maximize positive results, and of course I threw my two cents into the mix. Read my answer, and others, here.

RecruiterEsq.com profiles Nicole Gesher, Mediator and Owner, Gesher Mediation

Recently, I was honored to be profiled by RecruiterEsq.com, a site that delves into the legal world, traditional and non-traditional career paths included. It's interesting to think about mediation in the scope of the larger legal realm, and it made me grateful to be working in a field that's so much more collaborative than litigation. It's wonderful to feel like I am really helping people to build their own solutions, in a constructive, thoughtful way.

Big thanks to Melissa for including Gesher Mediation on her very informative site!

"I can't stand him!": Broken Relationships and Mediation

Sometimes, the very people we need to speak with the most are exactly the folks we are least able to tolerate. We're so angry, so frustrated, so emotional, that we can't even begin to THINK of talking with this person who has so offended us. And yet, if we don't speak with them, what hope can there be of any sort of resolution?

Mediation is a collaborative process, which assumes a basic working relationship of the parties. You may not like each other (indeed, you may hate the person sitting across the table). Nevertheless, your best chance of building a lasting solution is also sitting across the table.

Several times during the last few months, I've been contacted by potential clients who wanted to mediate, but didn't really want to speak with the other parties involved. While I can empathize with the stress of a strained relationship, I also know that to mediate without communicating is simply impossible. It is imperative that each party commit to sitting down together, and be willing to engage directly with the other people in the room. I can't help a potential client if they are unwilling or unable to talk to the other party. That's what regular lawyers are for!

I've had several clients recently who have told me that the only time they can talk to the other party about difficult issues is when they are in mediation with me. You may be surprised to learn what is possible when you openly communicate with the other party in a safe, facilitated space. Many of my clients are confronting deeply challenging, emotional issues. We all can use a little help sometimes, and mediation provides a neutral zone in which you can communicate honestly with each other.

Let's be clear: mediation, while collaborative, can often be driven by self interest. To deny that would be to engage in willful ignorance of human nature. However, so long as the parties can communicate and trust each other to honor the terms of the agreement, the mediation can proceed. The hardest part is often walking into the mediation room. But if you can do that, you are well on your way to building a solution that will very likely improve your current situation.

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.