Mediators tend to get caught in the middle and seldom receive a lot of accolades. We try to be in charge of the negotiations, yet we have to know when to step aside. We try very hard to create an environment where cooperation can occur, but we cannot be coercive or too directive, otherwise we become arbitrators or evaluators. Our task is to be helpful by intervening in a host of ways that most people don’t understand nor have a real clue about, and in the end – if we do our job correctly – we encourage the clients to think they did all of the work (and it is hard work for them, don’t get me wrong). This is all a far cry from some media hungry high profile litigation attorney claiming all the credit for a jury coming back in favor of their client. However, having tried cases to a jury as a young attorney and having mediated all these years, I think the work I do in the mediation room is far more challenging, stressful and complex than the work I did before juries when I was practicing law.
Let me explain what I mean.
Something happened today in my mediation practice that was unexpected and profound. Something that I think I want to take credit for: A couple I have been working with for the past two months in building a settlement agreement in their divorce surprised me with a call from the husband saying that they had agreed to try to reconcile. He wanted to make sure that I had received his email from the previous Sunday instructing me to stop all work on their case.
I returned his call and he reported – albeit with some trepidation – that they had decided to try and work things out. They were going to go back to the therapist who referred them to me for help in trying to stay together.
I asked Husband what happened that brought them back to the realization that they might be able to reconcile. He said the thing that changed his mind about trying to reconcile was the way his wife negotiated with him. That is, as I asked more, he said that she was so compassionate and understanding in her negotiations with him, that he gained a deeper respect for her in the process of meditating. He thanked me for the help and he was particularly impressed, he said, with the way I managed the negotiations for them.
When I called Wife later in the day, she responded in a similar fashion. I asked the same question about what prompted her to reconsider their joint statement that the marriage relationship was over, and she said: “We both agreed that the mediation process and the way in which each of us negotiated, helped us see that we each still have a great deal of compassion and respect for the other.” As I listened, she seemed to say that attacking problems rather than attacking each other was an important component in realizing they both still cared about each other. I complimented her on her efforts and wished her well.
After I hung up the phone, I wondered how it would be completely different had they each retained attorneys. Even if they hired attorneys who did not lob mortar shells at the other side and were only marginally adversarial, each attorney would still be under a duty to advise them each about their rights. Each attorney would have tried to tell them that they were considering some options in mediation that were significantly different than what would happen in court. Husband and Wife would have of course been cautioned about straying too far from the law (that is, from what is customarily predicted to happen in court proceedings based upon the facts of their case).
In their particular case, they had made a number of agreements that would not be possible in contested litigation in court such as paying for their adult children’s college, providing for an unequal division of property and planning a lump sum payment in lieu of spousal support. These creative and generous options (generous to each), were possible I think, because they took seriously my comment in the first meeting I had with them when I said: “If you want to be in mediation with me, I will try to get both of you to realize that you can only get a good result for yourself when you also help the other achieve a good, fair, just result.” In fact, this couple realized what many couples do not, that when they are both generous with the other, far more is returned to them for their generosity.
Truth be told – over the years, very few cases have reconciled – the decision has almost always already been made to divorce when they arrive at my table. I know this because I ask both of them very clearly at the consultation. More often than not, however, couples are able to develop new, healthier ways to interact with each other. While accolades are still rare, former clients have called and said “I’m getting along with him/her better than I ever have in the past because of the mediation process.”
Indeed, if one is hoping for their spouse to be fair and perhaps more generous than what a court would or could do, it stands to reason that people are always more generous if they are treated with respect and fairness in return at the mediation table.
Divorce does not belong in the court system.
If every time I had an argument with a brother or daughter or other relative, I had to hire a lawyer to point out how outrageously wrong that brother or daughter or parent was, I would not have a family. I might prove my point, but I think I would spend a lot of money on something that is better handled face-to-face. And the rest of my family would be left wondering why I was such a bully and why we couldn’t just work it out.
Some people say, “But you need guidance about what is fair and the courts and the lawyers know what the law has said is fair.” WRONG! As long-time mediator and attorney Leonard Marlow says: “If the law is so fair, why is it different across each state line?” Indeed, if the law is truly an instrument of justice and fairness, why is it that Texas will say to a wife, “Sorry, the most spousal support you could ever get in this state is $2,500 per month and then only for three years.” Yet, in Minnesota, there is no cap on spousal support and in longer marriages courts may award permanent spousal support.
Let’s talk about kids: Every parent’s main concern is “How will this affect my children?” But, if you and your partner or spouse have children and decide to live apart, you may be told by an attorney that it is to your advantage to get custody. In some cases, this attitude will start a battle that could last years. Here’s why: In most states, the person with “custody” (or with more time) gets more child support from the non-custodial, less-time parent. Of course, this approach basically labels one parent as inadequate and leaves that “losing parent” with less money to spend on the children. Wouldn’t you expect most people to fight to the bitter end to avoid being labeled a “non-custodial, non-residential, non-primary, less time, visitor?” (Or in Texas, you could become a “non-managing possessory conservator enjoying only access or visitation rights” and not full parental rights if you lose the battle).
At Erickson Mediation Institute (EMI), trained mediators will help you move away from the winner-take-all, loser loses, bullying that goes on in the playing field legal system by giving you guidance on what is really worth fighting about. Rather than fighting against each other, an EMI mediator will ask you, “What are the future parenting arrangements you can agree upon so that each of you can continue to be fully involved parents?” Keep the term custody for use with people at the state prison and use the word visitation at the funeral parlors, not in connection with your divorce.
Divorce is painful. Don’t make it worse by thinking it is a legal problem, therefore hiring a gladiator attorney and entering the arena of combat. After all, you are getting divorced to make things better for yourself (and your children), not worse.
Divorce is a family problem. It may create some legal issues (such as how you will get your name off the mortgage if only the other is keeping the house or trying to decide who will claim the children as exemptions on future income tax returns), but in the end, these types of problems are better handled in the mediation room where people attack problems, not each other.
Make things Better, Not Worse!!
This is the first installment in a blog about how Erickson Mediation helps people avoid the pain and destruction of adversarial, bitter divorce.
At EMI, our mediators will help you look at many different options for sharing the costs of raising the children.
Many of our clients use our Children’s Checkbook™ to share the costs of the children on a proportional basis with the higher income parent contributing more to the account each month.
At EMI, you will realize that you can only get a good result for yourself when you also allow for the other to obtain a good, fair result.
Steve and Marilyn were recipients of the New York State Council on Divorce Mediation’s Second Annual Distinguished Mediator Award on May 5th. The award was given in recognition of “their pioneering and sustained work in establishing the field of divorce mediation and their soulful dedication in helping families” over the last 35 years. Marilyn and Steve also delivered the keynote address for the conference. Congratulations Steve and Marilyn!
Bill Eddy spoke at a day-long seminar put on by Erickson Mediation Institute on February 4th entitled, “Working with High Conflict People.” Over 50 therapists, judges, attorneys and mediators listened to and engaged Mr. Eddy as he spoke about his experiences with high conflict people. Mr. Eddy explained the psychology and physiology behind many personality disorders commonly linked to those with a high conflict behavior pattern while giving insights and tips on how practitioners can best work with them. The conference was an enormous success! A few of Mr. Eddy’s practice tips included:
- High Conflict People respond well to the professional providing structure
- Some effective ways to manage a High Conflict Person are to exude Empathy, give them Attention and Respect (E.A.R.) Invite High Conflict People to make a proposal – this moves them quickly from the past to the future
- Put the problem on the shoulders of the High Conflict Person (“You have a dilemma. What are YOU going to do about it?”)
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Erickson Mediation Institute
3600 American Blvd West
Minneapolis, MN 55431