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.

 

 

A Divorce Mediation Case (Part 1 of 4: The Decision to Try & the Consultation)

In a moment, we will meet Angela and Bill, a couple about to go through a realistic though hypothetical divorce mediation.  They will pay (combined) $3,350 for divorce mediation services. By contrast, in many actual litigated divorces, each spouse pays more than twice that amount ($7,500 or more) for the lawyer’s retainer.  $15,000 between them, and very often that is just the beginning of the court process.

But in going through mediation, many spouses are like Bill and Angela in regard to the fees they pay – incurring costs lower than $3,500 for their session.  For couples who split the cost in half, that is $1,750.  [This assumes the mediator charges $300. If the process takes eleven hours – more time than the large majority of my cases take – that is $3,300.]

Note:  When I say ‘going through’ and completing mediation, I mean that parties have reached agreement.  The agreement then needs to be written and filed with the court (both of which are also necessary for spouses who choose not to mediate).  There is still some work (and expense) once mediation is over; but when spouses have reached this point, they have gone a very long way in the overall divorce process.

Now, let’s meet Angela and Bill.  In this post, and the next three, we will follow them over the next several months, as they deal (sometimes heatedly) with their conflicts, assisted by the mediator.

Bill and Angela have been married for ten years, and have already decided to get a divorce. They have two children, ages six and nine. They own a home, some other assets and a couple of credit cards.  We could add many more facts, but using these should be enough to illustrate a fairly representative divorce mediation case in which the spouses have a few strong disagreements that they need to address.

 

                               Dates/What Bill, Angela and the Mediator Are Doing                                       

October  19th, 2015

Angela calls the mediator, who answers several of her questions.

 

 

October 20th, 2015

Angela tells Bill what she has learned about mediation. She tells him that:

● this mediator charges $300/hour;

● the mediator would work with both of them, together;

● they can split the fee (and Angela says she is willing to split it);

● there is a consultation that they would both have to attend together, which costs $50.

● in mediation, the mediator is paid at the end of each session (unlike most attorneys who require a retainer upfront).

● the two of them, Bill and Angela would be the ones making decisions about their children and everything else; the mediator wouldn’t decide for them.

● if they were to begin mediation, either Angela or Bill could end the process at any time.

October 25th,2015

Bill and Angela discuss trying mediation.

● Angela wants to try it.

● Bill is reluctant, thinking of it as a touchy-feely waste of time.  But, since the consult is $50, and he would pay $25 of that, Bill agrees to the consult. If it doesn’t work out, not a big deal.

● They look at a calendar and choose two dates/times that they both will be available.

November 3rd, 2015

Angela and Bill attend the consultation and learn more about mediation.

● They both like the idea of saving money – as opposed to what litigation costs.

● They would like the process to be amicable (as much as possible), especially as they have fairly young children – meaning that even when divorced they’ll have to interact with each other for many years.

● The mediator won’t guarantee anything, but tells them that many couples complete mediation within 6 – 12 sessions.

● Having children, and owning a home and other assets – and having some major disagreements on a few very important matters – the mediator offers that the case will probably take longer than 6 hours. “Let’s say it takes 10 hours,” the mediator suggests, noting again that it could be shorter or longer. “That would come to $3,000, plus the $50 for the consultation.”

● The mediator adds that, finishing mediation doesn’t mean couples are divorced.  There are things that come after:

  • “Whether you mediate or go to court, you’ll need a document that in New York is called a ‘separation agreement’; it is essentially all of the agreements spouses come to, written up in a format that the courts require.”
  • “A lawyer will be needed to write that agreement; if you’d like, I can do that for you. I charge $1,500 for that service. But you are free to choose another lawyer, if you would like to.”
  • The mediator informs Bill and Angela that “I always encourage people to each meet with their own ‘review attorney’ to go over the agreement before signing it.  Remember, as a mediator, I would be working to help you both.  Your separate review attorneys would each represent one of you.”  (“If you would like, you can certainly hire a lawyer to consult with at any time before or during mediation.”)
  • There is also a ‘filing fee’ that people need to pay to the court, again, whether they mediate or litigate.

● Angela and Bill read the “Agreement to Mediate” form, which largely sets out in writing how mediation works and other things the mediator discussed with them. They sign the form.

● The spouses schedule a first working session with the mediator for the following week.

● Bill and Angela pay $25 each to cover the mediator’s $50 consultation fee.

Next time: The Sessions on Parenting, Income & Expenses

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

 

When a client won’t provide information. Part 4: Informed Decision Making in Mediation

I’m working with divorcing clients, and Wife is sharing information about her budget. Husband refuses to do the same. I ask whether he has concerns about providing such information, and he is not forthcoming. He has the facts and figures, but won’t tell us about them, bring in financial statements, etc. To make a long story short, Husband will not fully participate in the mediation process.

What happens?

Mediation is a voluntary process, and it is the parties who make the decisions: Will they schedule a mediation session? After the first one, will they return for the next? Will they reach agreements? Each party makes these choices for her/himself.

Similarly, each party – each spouse in this example – decides whether to share information about earnings and expenses, assets and liabilities. Once in awhile, a party decides not to.

Then what?

A mediator has no authority to compel parties to provide information; s/he is unlike a judge in this way. If a party won’t share it voluntarily, all the mediator can do is:

  • explain once again why giving the information is necessary (so that all parties will have enough information to make decisions);
  • explain that the mediation will have to be terminated if the party doesn’t change his/her mind; and then,
  • end the mediation.

In my experience, unwillingness to provide information most often becomes apparent during the first phone call or at the consultation; in other words, prior to any session being scheduled. If it happens over the phone, that part of the conversation usually goes something like this:

  • Mediator: In mediation, you would both need to share information with me and the other party. Do you think that you and your spouse would be willing to do this?
  • Potential Client: No, s/he will never go for that.
  • Mediator: Perhaps you can talk this over with your spouse; or, s/he is welcome to call me, so that we could talk, just like you and I are talking now.
  • Potential Client: It would be a complete waste of time.
  • Mediator: From what you’ve just told me, mediation is unlikely to work in your situation. Sometimes, a spouse will be more flexible and open once the process begins. But, just based on what you’ve shared, mediation doesn’t sound promising.
  • Potential Client: No, but thank you for your time and explaining all of this to me.

A crucial aspect of mediation is ‘informed decision making’. When a party withholds information, the other party is unable to fully know what the situation is, and would be deprived of the opportunity to make thoughtful decisions. To work (or continue working) with parties under these circumstances would be unfair to the party denied the information.  Mediation is not appropriate; if the process has started, the mediator must end it.

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

Yeah, it’s Voluntary; What else is Mediation? Impartial

In my previous post, I began to discuss what the process of mediation is, and explained that it is voluntary.  Mediation is also:

  • Impartial (some use the word neutral)
    • As a mediator, I work with both (or all) of the parties.  I work to understand each person, and to help them consider and speak about what s/he wants and needs for the future.  In the context of divorce, this often means talking about a place to live and how to pay for this and other expenses; and, if there are children, about spending time with them, and making decisions in regard to raising and caring for them.
    • I do not represent either (or any) of the parties; representing one party against another is something a lawyer often does.  Again, as a mediator, I work with all of the parties, helping them to gather and share information, to develop and consider options for going forward, and ultimately in reaching their agreements.
    • My role is to help the parties to communicate constructively, to guide them in considering and addressing all of the issues that they need to, to ensure as I am able to that their proposed agreements are workable (reality testing), etc. Without taking anyone’s side.

To be continued . . . .

 

What is Mediation? For one thing, it is Voluntary

The question, What is Mediation, may be a simple one; the answer is not.

There is plenty of confusion over what constitutes mediation, and many different areas of mediation practice:  labor/employment; international relations; commercial, civil court; community; environmental; divorce; family; environmental; and more.  There is ‘transformative’ and ‘evaluative’ mediation.  Mandatory and voluntary mediation.  Mediators themselves may mean different things when they use the word ‘mediation’.

I’m writing here to discuss what I do and how I practice.  And, while I believe that I can clearly explain how I follow the process, I don’t think it falls neatly under any particular label.  In fact, within certain boundaries, I may work somewhat differently with one couple (or group) than I do with another.  That being said, for me, mediation has certain cornerstones that I follow in every case.

One characteristic of mediation, as I practice it, is that the process is:

  • Voluntary
    • Clients who see me choose to do so.  I begin with a consultation, and it is up to the spouses (in a divorce situation) whether to schedule one.  If yes, the parties attend together.  We are all in the same room at the same time.
    • After the consultation, the spouses decide whether or not to try mediation (though I will tell parties if I don’t believe I can assist them, so as to save them time and money).
    • Once mediation begins, either spouse is free to discontinue at any time; to literally walk out.  Either party can choose to end the mediation at the first session, or at any session thereafter (if the case involves multiple sessions, as divorce cases do).  If a spouse ends the process, s/he is free to begin or continue with court proceedings, as if the mediation had never taken place.

To be continued. . . . .