When a Conflict Can’t Be Resolved – Part 1 of 2

Mediators have long asked themselves, and one another, why more people don’t engage in mediation.  The process has so many advantages and few drawbacks, that it is difficult to understand why relatively few people are at least willing to try it.

Consider that mediation:

  • is generally a lot quicker than going to court;
  • much less expensive;
  • less adversarial, as parties are helped to listen to and understand one another, and then to work together; as opposed to the polarizing experience of litigation;
  • allows the people having the dispute to make their own decisions, rather than a judge deciding questions for them;
  • is voluntary, meaning that either party can end the process at any time; and,
  • allows for greater creativity in developing responses and solutions to conflict; because the spouses (or other parties) are experts in regard to what they want and need (as opposed to a judge who is a stranger, and one loaded down with a large docket of cases that doesn’t leave him or her time to fully consider many options).

What’s not to like?  What’s the risk?  Why oh why don’t we (mediators) have an overflow of clients? So many clients that we need to refer and turn them away in droves?  Bernard Mayer – mediator, facilitator, trainer, researcher – offers an answer to the question that I had never thoughtfully considered before reading his book, Staying with Conflict:  A Strategic Approach to Ongoing Conflict.

I have long believed that most people don’t try mediation when they are engaged in a conflict largely because:

  1. they don’t have information about what mediation is/how it works, and so “don’t realize what they are missing” (including that the results are binding, if the parties want them to be);
  2. going to court is familiar – think about the hundreds of movies, TV shows and novels involving a courtroom drama; and now see if you can name three dealing with mediation.  While people know that going to court (and perhaps to ‘divorce court’ most of all) can be a bitter and difficult experience, doing so still means dealing with ‘the devil you know’; and,
  3. family and friends are quick to suggest what may be conventional wisdom – hire the meanest, nastiest lawyer you can; feeling vulnerable, and perhaps angry, saddened, tired or confused, people follow that advice, usually not knowing what they are in for, and that there are other methods that may well work for them.

In his book, Mayer discusses another reason:

Perhaps some people don’t believe mediators when we talk about helping to ‘resolve conflicts’ (or to ‘resolve’ disputes).   Alternative dispute resolution may not be credible to people engaged in what Mayer calls ‘enduring conflict’ or ‘long-term conflict’.

Example:  If a mediator told you that s/he could help the parties resolve a crisis in the Middle East (take your pick of which one), you would probably be skeptical, to say the least.  Many of the conflicts are deeply rooted and have been going on for decades or longer.  That anyone is going to resolve (end/finish) such a conflict doesn’t seem realistic.

But what if the mediator said to you that, “I think I can work with the parties to help them manage the conflict.  I don’t have any illusions that I or any mediator can help all of the parties I work with to settle all of the issues for all time.  What I can do is assist them in discussing some of the most pressing and immediate problems; I may be able to help them reach some agreement(s) to improve the situation (such as for a cease fire or prisoner exchange during a war).  As a mediator, I can work with them on choosing ways to keep communication going, and help them to take advantage of opportunities to work together as the conflict continues.”

If the mediator is referring to a crisis in the Middle East, what s/he is proposing – helping the parties to manage the conflict – is still a very tall order.  But it has happened, as hard as that may be to believe with the chaos engulfing the region at present.

Enduring conflict does not only exist on the international level, or have to involve matters of life and death.  Such conflicts may exist between business partners,  teachers and parents working with a special needs child, communities and local governments, environmental groups and industry, two parents over child-care issues or religious upbringing; and of course, in many other situations.

Next time:  What ‘enduring conflict’ may mean for divorcing parents; and for the mediators working with them.

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All blog posts are for information purposes, and should not be considered as legal advice.

 

 

Words matter: out with “custody”, and in with “parenting”

I recently came across an article, ‘Custody’ and ‘access’ terms promote conflict, litigation. (Thanks to whoever shared it.)   The article appears on “AdvocateDaily.com:  Canada’s Legal News”, but is as valid for readers in the United States as it is for Canadians.

The subject of the article – how language affects conflict in parenting disputes – isn’t new. You may know that “custody”, the term found in many statutes dealing with arrangements for children following a separation or divorce, is the same word used in the criminal justice system (as in, “The suspect was taken into custody”).  It is also the same word that is sometimes used in regard to property.  But of course, children are not prisoners or property.

But, does language really matter?

Speaking from personal experience, I can say that one or two words can make a very big difference.  Many years ago, during my own divorce, I was absolutely infuriated when my wife’s attorney condescended to tell me that “Your daughter can visit with you.  You can have a room for her, with her own bed. . .”   I mean, how hard would it have been for that lawyer to have said instead, “Let’s talk about how the two of you as parents are going to raise your child.”  Like “custody”, “visitation” is a word associated with the criminal justice system.

The article notes that:

  • British Columbia is the first Canadian jurisdiction to change the terminology from “custody” and “access” to “parental responsibilities,” “parenting time” and “contact” in the province’s new Family Law Act.

How many of the states in the U.S. have done the same is a question I can’t answer.  (If you happen to know, please share that information).  But it is a step forward, and not an insignificant one.

One reason that the article made an impression on me is because a judge was quoted as saying:

  • “These words denote that there are winners and losers when it comes to children,” says Justice Mary Lou Benotto . . .  “They promote an adversarial approach to parenting and do little to benefit the child. The danger of this ‘winner/loser syndrome’ in child custody battles has long been recognized.”

When judges speak out, at least a few people tend to notice.  But, changes that would seem to allow for obvious improvements can be frustratingly slow; and, I’m not expecting the terms “custody”, “visitation” and “access” to be replaced nationwide anytime soon.

By the way, if you read the article, you will see that an attorney who is interviewed for it, Steven Benmor,  offers that “replacing [such] words with “parenting time” would be in the best interest of the child.”  [emphasis added].   Recently, I wrote about this subject for nyparenting.com, in a piece entitled Best Interest of the Child:  A Vague Notion.  The AdvocateDaily.com article does not define “best interest of the child”; but, it is interesting to see how this nebulous phrase – one that denotes an extremely important concept – is used.

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Why Mediation is Faster than Going to Court (Litigation)

Why Is Mediation Faster than Court?

Divorce isn’t easy, and divorce isn’t quick. But if the marriage is ending, you and your spouse can decide between a process that will take months (mediation) and one that very often takes over a year at a minimum, and which not infrequently takes several times that long (going to court/litigation).

[I am not talking here about an ‘uncontested divorce’. That is a different story and a different blog post, and an option to be considered for couples with a very ‘simple’ case and one without disagreements.]

Why Mediation is Faster

Mediation often takes between six and twelve hours to complete. That’s it.

Sessions usually run from one hour to two hours.

When dealing with parenting issues, spouses frequently meet with the mediator over consecutive weeks.

When dealing with financial matters, sessions may be scheduled for every other week (or with a longer interval) to allow the spouses to obtain information about the value of a house, business, pension, or other assets; or, let’s say, to work out a budget.

Of course, the spouses may need time between sessions because of travel for work, holidays or for other reasons. The mediator may also have a conflict.

In practice, many spouses successfully complete mediation within three – six months.

[When I say that parties have reached the end of the mediation, I mean that they have reached all of their agreements. But just as when going through the court process, the agreements need to be written out and filed with the court; then, there is the wait for the judge to sign the document.]

Why the Court Process/Litigation takes Longer

A spouse meets with an attorney; the other spouse does the same. A four-way meeting (with the couple and the lawyers) takes place. In many instances, though not all, these meetings bring out strong disagreements. Any of a number of motions (requests to the judge to make a decision) may be filed with the court. There is the first court appearance.   Over the course of a case, there will probably be at least one and maybe several adjournments (postponements), and the court appearance will need to be rescheduled.

In many cases, depositions are taken, where the spouses are questioned by opposing counsel during a multi-hour process that is recorded.

For four people to schedule a meeting can be a challenge and cause delay. Adjournments can be for six weeks or more.

And at this point, the court case is just getting started.

Most court cases require quite a few court appearances, not to mention a possible trial.

If there are children involved, a New York judge will likely appoint a forensic psychologist to meet separately with each family member. Think of the scheduling for that. After, the psychologist must write and submit a report to the judge, who will need to read and consider it. You’ll find out more about that report at the next court appearance.

Also, if there are children, an attorney for the child may be appointed to represent the child’s interests. That is another meeting (or more), and that attorney’s schedule to consider as well.

Just for some context, my own divorce many years ago took well over two years, and that was with my ex and I settling long before a trial was even in sight.

And that was at a time, I believe, when the courts were better staffed, making the process speedier than it is today.

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Hiring Experts in Mediation – It’s very Different than in Litigation

In both mediated cases and those litigated in court, experts may become involved; but their roles can be very different, depending on which process they are involved in.

A psychologist in a litigated case:

In a divorce case where there are children, a forensic psychologist will most likely be appointed by the judge, if the parents are involved in a custody dispute.

In large part, the job of the psychologist is to determine who is the better parent. And, who is the worse parent. The reason for this is that the issue in court is essentially, “Who will get custody of the children?” Someone will ‘win’, and someone will ‘lose’.

Parents and children will meet with the psychologist, separately. Many of the questions asked may be intrusive. Often, one or both parents is frightened of “losing the children”. Even loving and nurturing parents can be tempted to coach their children, telling them what to say to this mental health expert whose report may well have a significant impact on the outcome of the litigation. Unfortunately, a few parents will ask or tell the children to lie, and the consequences can be devastating and long lasting, for instance, when a child is instructed to allege abuse where no abuse has taken place.

A psychologist in a mediated case:

In mediation, the question is not “Which of you will get the children?”, but rather, “How will each of you (Mom and Dad) spend time with your children, so that you can be the best parents you can be to them, and so that your children can get the most from both of you?”* [Please note that I am not talking about a situation where there may be abuse; that is another discussion.]  Usually, parents are able to answer this question on their own, without looking to a mental health professional.

But, if a psychologist or other mental health professional is needed during mediation, the purpose might well be to have a child meet with that person to help the child, by engaging in play therapy, let’s say, where the child’s play or drawings might reveal anxieties that can then be addressed. The child can then be helped to feel more secure; the adjustments and transitions made easier and less scary.

A financial expert in litigation:

In a court case, you might hire someone to tell the court how much the marital home is worth. Your spouse might do the same. It is likely that your experts will come back with different determinations as to what the value of the home is: Probably your expert will state a number or range that favors you; and your spouse’s expert will give a figure or range that favors her or him.

Possibly, the court may ask that a third expert be hired to settle the disagreement between the original two.

A financial expert in Mediation:

In mediation, you and your spouse would discuss the need for an expert to put a value on the house; and then, if you were to jointly decide that it would be worthwhile to hire someone, you would determine how to choose a qualified professional acceptable to both of you. You would decide on how to handle the person’s fee, perhaps splitting it in some fashion; perhaps not. Either way, there would be only one expert to hire regarding this question, saving you money as a couple. You could instruct the expert to provide the most neutral and balanced appraisal possible.

Conclusion:

In mediation, you have the choice of calling upon an expert to provide solid information or to assist in solving a problem.  By contrast, in court, a judge may make such a decision for you; and there, the circumstances and the outcome may feel much more threatening.

*Paraphrasing Erickson and McKnight Erickson, Family Mediation Casebook:  Theory and Process.

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All blog posts are for information purposes, and should not be considered as legal advice.

Avoiding bias in Mediation – Starting with that first call

I continue today writing about impartiality in mediation, this post being about a policy or process to help avoid bias right from the outset.

When a potential client calls me, (or approaches me in person) I try to 1) avoid hearing about the “substance of the case”; and, 2) limit the discussion to process questions:  what mediation is, how it works and the like.

Avoiding substance:

  • Often, a potential client will begin (or turn) the call to matters that are upsetting to the caller, or deal with a desired outcome.  (Example:  “She moved out four months ago, has hardly seen the kids, and now wants to take them to her parents in Florida.”;  Example:  “He makes all this money and is threatening not to give me any.”  “Example:  “I have to be the one to stay in the house.”)
  • Hearing a lot about the case from one of the potential clients may result in bias; if it doesn’t, the other party, understandably, may believe that the mediator is biased in favor of the party who called and so can’t be impartial. This perception, accurate or not, probably can’t be changed.
  • I will frequently tell a caller (or the parties at a consultation), that “You should begin the process having confidence that I can help you both, and that I am impartial. If you don’t feel that way with me – or just aren’t comfortable with me – that’s alright. If you want to, take time and discuss it and think it over.  If you’d like, I can help you find other mediators to consider.  And, I mean it.

Turning to (or better yet, only discussing) process matters:

When a potential client gets into ‘substance’, I gently interrupt, and explain the need to avoid bias – or the perception of bias.  We then can, and usually do talk about matters such as:

  • How much mediation costs
  • How long sessions are
  • Generally, how many sessions (a range) many clients need
  • What the parties will need to do at and between sessions
  • How long before the judge signs the papers
  • I let callers know that:
    • I am not a judge and won’t be making decisions for them
    • I work to help both (or all) of the parties, and won’t be representing one against the other
    • I don’t give legal advice, such as on how a judge might decide a particular issue

Note:  I will ask a few questions, such as “Do you have children?”  But most of my initial questions I send to the parties using a brief form that both fill out individually and return to me; and, I follow up with the spouses together, at the consultation.