Dr. Dan Shapiro of the Harvard Program on Negotiation makes a simple proposal for moving forward when a party is angered by some aspect of a negotiation. Ask them why they are upset. It is best to make this an “I” statement. For example, consider asking “Is there something that I said (or s/he said) that has caused you to have this negative reaction?”. Encourage them to talk about the issue that is on their mind. The late radio psychologist, Dr. Joy Browne, often advised “Be curious not furious”. Consider ways to encourage conversation and not ways that tends to stifle the free exchange that is needed.
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.
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.
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.
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.
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”.