People sometimes express what they think they want. But the expression of a position they hold dear is not necessarily an indication of the interest they may have. We know this in mediation theory as positions v. interests. Want to learn more? Here is a brief discussion on this concept by Martin Rosenfeld.
A.J. Baime of the Wall Street Journal recently wrote about a creative problem to a seemingly knotty dilemma.(“He Had a Will to Win Back His Classic MG”/May 22, 2019). Bruce MacCormack is 81 years old. In 2003, he sold his 1971 British-built MGB to Chet Kenoyer, age 64. In 2012, Mr. MacCormack missed owning the car in question, (a delayed example of seller’s remorse!) and called Mr. Kenoyer about buying back the car for the sales price that had been established 9 years earlier. In addition, the car would be left to Mr. Kenoyer in the will of Mr. MacCormack. Mr. Kenoyer said he would consider the offer, as he apparently did not drive the car too frequently. A few days later, Mr. Kenoyer received a check for the car (the original sales price of $9000), and a copy of the will containing language that he was to inherit the car upon Mr. MacCormack’s death. To sweeten the deal even further, Mr. Kenoyer has been told he might drive the car anytime he so chose. The parties are both quite happy, it seems, as to the manner in which they attained Win-Win.
When parties face an impasse, there are often a number of solutions to help them get to an accord. Sometimes the options are discovered by creative means. In mediations, as in negotiations, always be prepared to think outside of the box. Even a case of seller’s remorse can have an ending that suits both parties quite well. All you need is good-faith and a dose of creativity. Mediate don’t litigate.
In Spring 2000, before Super Tuesday, Governor George W. Bush and Senator John McCain entered into a debate. Governor Bush had been pressed to explain why he visited Bob Jones University in South Carolina, an institution known for its anti-Catholic sentiments. Bush addressed the controversy by saying,”I make no excuses. I make no excuses.” This response was deemed a sufficient statement of remorse, and the issue was deemed closed. In time, Governor Bush became President Bush, our 43rd President.
In mediation theory, we we focus on a party’s interests and not their stated positions. A party may presumably be seeking a financial recovery or benefit. While this is their position, their interest may well be something far less tangible; i.e. respect, dignity, assurance, etc. There are times where heartfelt words are “good enough” to bring a dispute to a proper resolution. Mediate don’t litigate.
***Listen to Martin Rosenfeld on the impact of an apology***
As a mediator, I attempt to work with my clients on an affordable fee program for their mediations. (See http://www.NJMediationWorks.com). A potential client once asked me if I would do a mediation with no cost. I responded in the negative. Why is that? Therapists will argue that a client who gets a service without cost does not value that service. That is not the cause of my decision to refrain from doing a no-cost mediation. The parties need to feel that time is of the essence in reaching an agreement. When matters drag too long it becomes increasingly difficult to get to Win-Win.
This notion is similar to the religious belief many have that death and dying is actually a form of blessing bestowed upon mankind. If we did not have numbered days, how likely is it that we would perform the tasks we need to perform? After all, if I live forever, why do something now. I can do it in one thousand years! By paying for mediation, and feeling a sense of exigency, parties are more motivated to look for solutions and try to attain Win-Win.
I was once asked by a Legal Service office if I could allow a mediation to proceed by not charging their client and asking the other party to pay for the entire mediation. I said that this was not fair as mediation needs to be shared by both parties. The Legal Aid office then wrote to the State of NJ to express their displeasure with my decision. The State supported my point of view on this matter. Mediations need to be highly focused, driven by a motivation to seek solutions, and shared by all who will participate. Indeed, compassionate mediation is necessary, but there must be a sense of a shared journey for the parties involved.
Divorce is increasing (now estimated to be well over 50% of all marriages) and the attendant problems they often usher in are increasing as well. What ripple effects are caused by the greater prevalence of divorce? I will outline three areas of impact.
CHILDREN AT RISK
In the field of divorce, the work of one person stands out for thorough research methods. Her name was Dr. Judith Wallerstein. Dr. Wallerstein is reputed to have interviewed more divorcing couples than any other person in history. Dr. Wallerstein was curious if divorce affected the well-being of children. Early in her career, Dr. Wallerstein presumed that lower-class children were more prone to the harmful effects of divorce than were their wealthier peers. Ultimately, Dr. Wallerstein concluded that class was not the determinant of how children might be harmed by the divorce in the family. What she did conclude was that children whose parents had an amicable divorce were less likely to be harmed by parental divorce than were children whose parents had a bitter and rancorous divorce.
It is well known that when a couple divorces, each party is highly likely to be in greater financial peril than they were previously. A study cited in “The Divorce Revolution” found that women have a 73% drop in their standard of living after divorce. This presents a challenge to communities and its leadership.
Divorce is considered one of life’s most traumatic events. It is difficult for the adults and it is more difficult for children. Family members affected by divorce are prone to episodes of depression, “acting out”, withdrawal, feelings of guilt, etc. Many such individuals do not recognize their symptoms or do not wish to seek professional help. The reasons might be shame, lack of esteem, feelings of hopelessness, etc. At times, a family who was once affluent, but now beset by financial woes, will not wish to seek help because they are too proud to acknowledge their need to pay reduced fee or no fee. People who have just been divorced do not always step forward to get the assistance they need in meeting their mental health challenges. For a person who has experienced good health for all of their life prior to divorce, their new status brings them shame and bewilderment. (Studies have suggested that divorced men are 10 times more likely than married men to seek mental health counseling. This challenge is little-discussed in the literature, in my opinion.
We have defined some of the challenges brought on by increasing challenges to the family. Are we prepared to tackle any of these concerns?
Family Law litigator, Steven Kolodny, was recently interviewed by Family Lawyer Magazine in 2018. He was asked why he chose to practice Family Law. This was part of his response: “I chose family law because it is the only area of law that gives you the opportunity to make a positive difference in the future lives of people.” I agree with such a sentiment. Getting a party a large settlement in tort law may make for a very satisfied client. But will it make a positive difference in their future lives? Perhaps. The recovery may get them proper health care, freedom from worry about future income, etc. But how often does this happen? Helping parties resolve their disputes, and moving on, ALWAYS makes a positive difference in people’s future lives.
The Talmud rightfully states that “There is no joy as great as the joy of resolving uncertainties”. A successful mediation can bring reconciliation. It can give the parties new-found communication possibilities. At the very least, it allows parties embroiled in controversy the chance to “clear the deck” and move on with life. That is the kind of uncertainty that needs to be resolved. A mediator who can achieve this in her/his work has truly made a “positive difference” in the lives of others. That is the true fringe benefit of being a professional mediator.
It is not all about winning:
It is rare that there will be only one option for a resolution of a dispute. The goal therefore is to find the option that both parties will embrace. The authors of “Getting to Yes” refer to this as “options for mutual gain”. An example of this would be the resolution to the Cuban missile crisis of 1962. The US found the presence of Russian missiles on Cuban territory to be an aggressive and illegal act. However, the Russians needed a face-saving device before it would agree to dismantle the weapons. The US suggested that it would dismantle its (obsolete) missiles on Turkish territory as a quid quo pro. In this manner, the Russians could explain to their citizens that they received the “prize” they wanted, and could therefore justify its decision to backtrack on the Cuban missiles.
Bruce Patton is a co-author of “Getting to Yes: Negotiating Agreements Without Giving In”. Mr. Patton describes the typical negotiation as follows: strong demand, counter-claim, and concession. The agreement involves, often enough, splitting the difference. If there is no agreement, there is an impasse. The alternative is the model we know as Win-Win. The model instead provides the following:
-A problem-solving atmosphere where options are brainstormed;
-No demands or threats; and
-A mutual exploration of interests of all. This includes needs, hopes, and concerns.
Which model sounds better to you?
POSITIONS V. INTERESTS/Martin Rosenfeld
What can a mediator do when the parties seem to have reached an impasse in their discussions? Some options may include the following:
*Remind the parties, if they have children, how a non-agreement may place a disproportionate burden on their children. Parties may be happy to attempt to pulverize each other, but how many parents want to see their children harmed?
*Have the parties consider how the alternative to an agreement (i.e. litigation) will likely be exponentially more costly, both in dollars and psychic pain, than any mediated agreement they may be able to reach. For example, the average mediation is well less than the cost of the average litigated matter.
*Suggest that if they cannot fully mediate their dispute, they agree to that which is doable and then take the unresolved matters to arbitration.
*Give the process a break and let the parties re-convene at a time they feel ready for another “rodeo”.
*If necessary, ask the parties if they will allow you as mediator to move out of your neutral stance and offer your opinion as to how they can resolve their differences.
*Remind them that nothing will be more satisfying to them, in the long run, than to know they worked with civility and sensitivity, to come to an agreement that they can both be proud to “own”.
*Ask the parties, what they would like to do if no resolution is found. “Mediate don’t litigate” is more than a convenient saying. Mediated agreements really make sense and is worth the effort that may be required. Mediation may not always work but it has a proven track record of success. Keep this in the forefront of all post-impasse discussions.
Phyllis Polack, a prolific writer on mediation, recently penned “Silence is Golden” at https://www.mediate.com/articles/pollack-silence-golden.cfm. The gist of this piece is that effective mediation requires the gift of listening. However, at times, a mediator may choose to resort to the use of silence. Pausing in silence, can be a powerful tool. As an example, think of the words of FDR that “the only thing we have to fear [PAUSE} is fear itself.” Why is silence so important? At times, it may be needed to allow the parties to digest what has already been said. In addition, saying nothing can make the parties unnerved. They may well choose to fill the void with important thoughts or opinions. This could well be what is needed to break an impasse that has occurred. Or it may simply indicate that the other party has been heard. It was Will Rogers, the humorist, who said: “Never miss a good chance to shut up”. In a mediation, it is not always what you say. It can also be what you do not say and when you choose not to say it. Mediate don’t litigate.