Advice for a New Decade/Martin Rosenfeld, JD

In Stephen Covey’s work, “The 7 Habits of Highly Effective People”, he lists this as Habit #3:

“Broken focus is the number one reason people fail. It’s not enough to start off on the right track; you must successfully avoid the unnecessary distractions and attractions of life that aim to sidetrack you… The main thing is to keep the main thing the main thing.”

Mr. Covey did not write Habit#3 with mediation in mind. But for those who enter into a mediator, or who guide its process,it is crucial to “keep the main thing the main thing”. Good advice for the new decade and all those that follow.

Self-Respect/Martin Rosenfeld, JD

The pugilistic US Representative (R-Ohio) does not wear a jacket to public hearings. When asked if he ever wears a jacket, he said that when he needs to show respect (e.g. a visit to meet President Trump) he does wear one. By implication, this means that being invited to attend the Impeachment Hearing is not sufficient reason to show respect. A possible slight to his colleagues and/or to the American people? Judge for yourself.

It is difficult when sparring with an adversary, during a mediation session, to show civility and even respect. But at what price? Being ornery is a self-defeating stance. If you have self-respect, you can manifest this by showing respect to others. This applies equally to those with whom you disagree. Is wearing a jacket while representing the good people from the Buckeye state really too much of a sacrifice? Civility is always in fashion.

Mediate don’t litigate.

Expressed Feelings/Martin Rosenfeld, JD

The Program of Negotiation/Harvard University, published a post by Kathy Shonk, on December 12, 2019, entitled “Four Ways to Manage Conflict in the Workplace”. Specifically, the discussion included a treatment on the expression of emotions. Is it OK to express feelings of e.g disappointment, anger, hurt, etc. The answer to this question is in the affirmative. What can such expression accomplish?

*Expression of feelings is cathartic. It allows a party to be more comfortable with the ensuing discussion. The cards are now on the table.
*By being free with emotions, a party is seen in a more human context. They are no longer the enemy, but a party who feels aggrieved.
*Emotional release may lead to more frank discussion. It may encourage a reciprocal catharsis.
*Remember the maxim, never judge a person until you walk a mile in their moccasins. Free expression cal lead to greater understanding.

Divorce is Not a Transaction/Martin Rosenfeld, JD

The current movie about divorce is named “Marriage Story”. This represents an irony. A further complication is that the movie has no winners nor losers; there is likewise no hero and no villain. In this manner, the movie is like many divorces. No one truly comes out ahead. However, Alan Alda’s role as a divorce attorney points out a basic truism. To many attorneys a divorce is simply another transaction that must be managed. The Alda attorney prefers to view the players in the divorce scenario as “people”. This is not poetry in motion, but it is a truism. Mediation helps the parties re-gain a sense of their humanity and decency. Litigation is not geared to such an outcome. litigation can be said to view the drama as another transaction. Mediation remembers that there are people involved and people affected by the divorce activity. Mediate don’t litigate is more than a pithy catch-phrase. It is the (only) way to ensure that people going through marital dissolution are always viewed as people in need of proper treatment. It may not make for great poetry but it is often the best result that can be effected by divorce professionals. Civil divorce is possible. Mediation makes that happen with great success. Mediation is worth a dedicated try for that very reason.

Children in Divorce/Martin Rosenfeld, JD

The successful author, Jane Green explained why mediation made sense for her in her divorce action in a brief 50 words:
“I am divorced, and one of the things I am tremendously grateful for is that my ex-husband and I made a decision to go through mediation. I knew a trial would drag on for years, would cost me everything, but worse, would be devastating for our four small children.”

Mediate don’t litigate. Especially if you have children.

Mea Culpa/Martin Rosenfeld, JD

Many commentators have opined that the failure of President Nixon to admit the errors of his ways, led to his vacating the office. President Trump too has an inability to admit to wrongful acts. This likely underlies his Impeachment Hearing. In a mediation, feel free to acknowledge mistakes and to engage in apologetic words, if called for. It is refreshing for people to take such an adult path. It often is the best way to resolve longstanding disputes. It is well worth the effort. To err is human, but to take responsibility for this is Divine. Mediate don’t litigate.

Listening for Meaning/Martin Rosenfeld, JD

There has been much speculation about the Trump letter to Erdogan that was devoid of ant political nicety. In effect it said, “Don’t invade Syria or you will be deemed a fool”. What was the thought process of our President? Some have suggested that the president works with “mirror image” thinking. If I think this way, then surely the Erdogan thought process is similar.

In mediations or negotiations, we assume that certain behavior from our opposing number is based on reasons that are clear to us. But perhaps we are wrong? A better way of proceeding is to listen carefully to what the parties say and how they say it. If that gives us no clue, why not be direct? For example, you might say “I believe you have done X for reason Y. If that is not so, please correct me.” It is worth a try and it certainly beats “mirror image” thinking. Mediate don’t litigate.

Most Popular Form of Divorce/Martin Rosenfeld, JD

DIY stands for “Do It Yourself”. Many couples in divorce situations cannot afford legal representation. Many articles appear in the topic of self-help, or DIY. This is an area in which mediators can be helpful and where legal practitioners cannot be. A DIY couple will not choose to seek out an attorney. Yet, they may well feel that help is needed in getting advice about areas where agreement seems to be elusive. Or they may desire to seek out new avenues of attaining Win-Win in areas such as child visitation, division of assets, future communication, etc. There could well be a perfect fit between DIY clients and their friendly, local mediator. This possibility can greatly help the estimated 60% of parties who choose to “do it themselves”. It is not wise to ignore the “silent majority” of parties who chose to divorce without legal help. Mediation is a perfect adjunct to such situations. “Mediate don’t litigate”.

Beyond Hatred/Martin Rosenfeld, JD

The online version of The Atlantic magazine (October 2019)has a good read on General James Mattis, entitled “The Man Who Couldn’t Take it Anymore” by Jeffrey Goldberg. The follow snippet is insightful to all who practice mediation. “‘ General Mattis quotes President Lincoln’s famous phrase “With malice toward none, with charity for all”. The General then sums up the impact of the statement in just a few words: “Lincoln said that in the middle of a war. In the middle of a war. He could see beyond the hatred of the moment.”

Many disputes such as divorce disputes, family disputes, etc. can easily contain toxic issues and conversation. But families need to get back together again and divorcing couples with children need to co-parent once again. How does one put the rancor of the immediate challenge. “See beyond the hatred of the moment.” There is no choice nor alternative. Negativity carried to the extreme can destroy people. Futures can be ruined. What is the solution. “See beyond the hatred of the moment”. Mediate don’t litigate.

Fake Weather?/Martin Rosenfeld, JD

By now most everyone knows about Pres. Trump warning that Hurricane Dorian was heading towards Alabama. The only problem was that it wasn’t doing that. The president then produced an altered weather map to prove his “point”. On this miscue, Chris Cillizza of cnn.com posted (September 5, 2019) “Donald Trump’s Alabama Obsession Reveals a Very Deep Flaw”. The flaw dealt with honesty and integrity. “Trump is so obsessed with being right…that he blocks out any and all other responsibilities or duties as President to pursue that goal.” Does that sound like anyone you know. Ever see someone involved in a dispute with an opponent? They can only see truth from their own side. To be successful at that, they often need to block out all other responsible and meaningful scenarios. Truth becomes a victim. Is it not possible that some truth resides with the other party as well? The answer is surely in the affirmative. If you want to try to find out how that may be possible, try to attain Win-Win. Litigation will not get you there. Mediate don’t litigate. For those who pursue truth, this is the only path one can choose, weather map or not.