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.

Flexibility as Virtue, Not Weakness

In our highly individualist society, we are taught from a young age to stand up for ourselves, to fight for what is ours, and to stand our ground. Early lessons about sharing quickly go out the window as we learn to accumulate and compete. As a result, many of us feel weak when we compromise or allow another person to "win." However, in a mediation, those who find that they can share often emerge as the most satisfied participants.

I recently mediated a case where one person held their ground, refusing to see any merit in the other person's position. While their stubborn attitude may ultimately "win," what have they actually accomplished? It's true that they have successfully alienated the person across the table, whom I feel fairly certain will feel disinclined to treat them generously in the future. In this case, that is quite tragic, as their situation requires them to have an ongoing relationship. So, while the "win" may result in short term gain, the cost to the overall relationship is unlikely to be worth this expensive stance.

How could this have gone differently? How would flexibility have allowed the parties to maintain an ongoing, trusting relationship? Perhaps both parties would have felt validated by each other, enabling us to discuss collaborative solutions that worked for both of them.

Is it possible to validate another person's position and still maintain your own? The answer is yes, of course. When one party acts generously, the other party will more often than not respond in kind. And, just in case they don't, the mediator is there to call attention to the generous act so that it does not go unnoticed. However, when one party is determined to hold their ground at all costs, generosity has no place in a mediation. Why should the other party placate, when their counterpart is unwilling to budge, nor even acknowledge the validity of their position? This is not the dynamic of a conversation, but of a cave-in.

Mediation assumes that the parties are willing to have a conversation on these terms of flexibility, collaboration, and respect. If those three tenets are absent, the conversation doesn't really have anywhere to go, except downhill.

Suspending Judgment: Respecting Client Autonomy

I recently met with a couple. They came to see me at one partner's request - Partner A desperately wanted to get out of their marriage, while Partner B was in total denial that A really wanted to leave them. Over the course of our meeting, I witnessed A's extreme distress, and B's repeated attempts to emotionally manipulate A into staying with B, despite A's stated misery.

We met for two hours, at the end of which I thought B was starting to understand A's perspective. We set a meeting time for two weeks later. The next week, I received a short email from A telling me that they were getting back together. My initial reaction was shock. It was all I could do to keep myself from calling A to ask what had changed their mind so completely, but I forced myself to sit still and respect A's stated wishes. I wrote back, wishing A the best of luck.

As a mediator, this was an extremely difficult action of restraint, and another excellent reminder that I must table my own judgments in order to better serve my clients. I met with this couple for several hours. They had a much deeper insight into their internal dynamic than I could ever have. What looked like emotional abuse to me may not have been that at all. On the other hand, it may have been exactly that.

However, I need to afford A the respect they deserve as a competent adult to make their own decisions, without my own assessment of the situation clouding any outcome. As a mediator, I'm not pushing any agenda (certainly not my own), and I can't facilitate a conversation that the parties do not want to have. I sincerely wished them the best of luck with their marriage, and I did so with a clear conscience, knowing that I did not allow my judgments to stand in their way.

Directive vs. Facilitative: Why Your Mediator’s Approach Matters

Many mediators subscribe to a certain mediation style, and it behooves any of us looking for an appropriate mediator to learn a little bit of mediation vocabulary in order to know what we can expect. This new understanding will help to discern which mediator best suits your goals and preferences, and also assist you in assessing whether or not the mediator’s style will help or hinder an appropriate resolution of the problem at hand. And now, without further delay, the two main schools of mediation styles:

1. Directive

The directive style involves, as one might imagine, a more directive approach. Mediators who subscribe this philosophy take a more active role in the mediation. They may take charge altogether, highlighting the issues they perceive to be the most important. They may also suggest solutions, emphasizing their own perspective and experience. Directive mediators (and their experience) can add tremendous value in cases where technical issues are important to the parties, but they operate in a gray area that lies somewhere between mediation, arbitration, and more traditional methods of dispute resolution (e.g. litigation). Others guard the process carefully and navigate their mediations with great dexterity. Many directive mediators are former or current attorneys with decades of experience in the courtroom. They bring with them a wealth of experience and knowledge. However, any prospective client should be aware that the process might be less client-centered. Clients should be prepared for this shift, and speak if they are uncomfortable.

2. Facilitative

The facilitative style centers around the client(s), as opposed to the mediator. A facilitative mediator will let the clients drive the process, though the mediator is there to provide structure. Clients have both responsibility and power in a facilitative mediation; they need to ask questions, actively participate, and be prepared to negotiate with each other. The facilitative mediator will guide clients, but they will not direct them. The clients determine the relevant issues for discussion and collaborate to construct an agreement that meets their needs and goals. The clients must engage with each other and the mediator. A facilitative mediator should have the tools and knowledge to answer substantive questions their clients may have, but they will not volunteer this information is order to sway the clients in any given direction, nor will they offer their opinion as the guiding principle for decision-making.

3. Hybrid

Most mediators use some combination of the facilitative and directive styles, but it is vital for potential mediation clients to understand the mediation philosophy of their mediator.

Mediation is an alternative dispute resolution process precisely because it allows parties to creatively construct their own solution, within the scope of the law. Choose your mediator carefully, and take the mediation seriously. That way, everyone wins.