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”.
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.
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.
Konrad Adenauer was the first Chancellor of what became West Germany. In his long life, Adenauer’s commitment to Germany as a statesman, led to much acclaim. In a public television poll in in 2003, Mr. Adenauer was selected as the greatest German of all time. He was famous for this one quote “We all live under the same sky, but we don’t have the same horizon.”
Why is this mediation post discussing Konrad Adenauer? The answer lies in a column written for the WSJ by Walter Russell Mead on May 21, 2019. (“Palestinians Need to Get Real About Israel”.) Mr. Mead maintains that perhaps it is not a two-State solution that Israel and the Palestinians need but rather a “one state solution”. The author then makes this assertion about the Palestinians:”They need a Konrad Adenauer: a leader who can accept military defeat and painful territorial losses while building a prosperous future through reconciliation with the victors.”
WWhether one agrees with Mr. Mead or not, his statement packs a punch in the context of dispute resolution. We do not always emerge from “battle” with victory. At times, our losses are painful. But to overcome defeat, we must first learn to deal with it. I recently saw a quote to the effect that if we seek to destroy our adversary and attain revenge, we need to dig two graves rather than one. There are losses in life and losses at the bargaining table. At times the justice we crave nevertheless eludes us. Reconciliation with our opponent is not always a possibility. But perhaps in the course of the mediation process we can learn to accept what has befallen us and then make the effort to overcome and move on. Who wants to dig a grave for themself?
A dispute has more than one side. It is easier to resolve a dispute if both parties are also willing to view it from the other party’s side. There is an expression that advises us to “never judge a man until you walk a mile in his moccasins”. By viewing the other person’s perspective, you get them to feel heard and respected. You also create a motivation for the parties to seek a proper solution. A question a creative mediator might want to ask is this: “How would you react if you were in their shoes (or moccasins)?” Ultimate truth lies on a continuum. It is rarely found at either pole. Be open to other points of view, other feelings, and other needs. The walk in the moccasins of your opposing party might just get you to Win-Win.
A good mediator must be a good listener. What happens when one feels s/he is being heard? William Ury, mediator guru, sums it all up in one sentence: “When you listen to someone, it’s the most profound act of respect.” Many complain in life that they are not “being heard”. It is often no wonder; we are looking at i-phones, computer screens, and breaking news on our tablets. What does that do for one’s feeling of self-worth and esteem. A good mediator listens. If successful, she can get the parties to listen to each other. Once respect enters the equation, all becomes possible. Win-Win is not too far behind. Te Dalai Lama said it this way: “When you talk, you are only repeating what you already know. But if you listen, you may learn something new.” Respect, listen, resolve your dispute.
The Program on Negotiation (PON) of Harvard University, published an article (September 20, 2018) entitled “The Pitfalls of Negotiating Over Email”. We probably know intuitively that Email is not a perfect communication vehicle. The post discusses some of its weaknesses. It is difficult to read a statement on paper, and determine if the writer is serious, joking, angry, sarcastic, etc. The tonal aspect is missing in an Email. A person learns much from trying to read the body language and non-verbal communication of another party. Email makes this an impossibility. Certain comments may unintentionally come across as curt or impolite in an Email due to the informality we bestow on such communication. You can establish rapport with another, even an adversary, when the party is present. Rapport with an Email is a non-event.
President Lyndon Johnson liked to talk about meeting people and “pressing the flesh”. A negotiation via Email is lacking in the human touch. The conclusion seems to be this: If something is important, say it in person. Leave the social media to the nation’s politicians. Mediate/negotiate; don’t litigate.
An article appeared on March 22,2019, on the website for the periodical “Fast Company”. It is entitled “Why the ‘Velvet Hammer’ is a Better Way to Give Constructive Criticism”. The gist of the article is that there is indeed a proper way to deliver “bad news” to a party. The following explanation speaks for itself:
“Giving negative feedback is important in many situations. If you delay or don’t approach a sensitive subject, it’s like not telling a friend they have spinach in their teeth.
‘If you have spinach in your teeth, do you want to know or not?’ asks [Joy] Baldridge. ‘It’s still there. When something needs to be said, most people in the organization know it. Everyone, that is, except for the person who needs the feedback. It’s like a someone walking around the office with a ‘kick me’ sign on [their] back.’ “
If in a negotiation you need to strike at a weakness of your counterpart, employ the “velvet hammer”. Make your comments clinical and fact-based. You may not be met with approval, but you have advanced the possibility of having your words heard. Firmness in a position does not have to be mean-spirited or vindictive. Mediation don’t litigate.
A mediator is a professional who helps parties involved in disputes avoid reaching an impasse. But the Mediator may truly be able to impact on lives in ways not conveyed in a simple job-description. Because of her/his role of trust, a Mediator might find that there is a role to play in the following mental health areas:
1. Because of the burdens of being in a conflict situation, a person might be suffering from anxiety, depression, insomnia, etc. It would not be inappropriate for a mediator to lightly touch on the topic of seeking therapeutic help when a person or persons seems to be exhibiting “battle fatigue”. (It might well be possible to discuss this in a caucus situation.)
2. A couple seeking divorce mediation, may be well-served to first seek out the assistance of a marital therapist. While this advice might short-circuit a potential fee, there is a potentially “higher profit” in the making. A timely referral in such an event is an indication of the concern and caring that prompt many people to seek a career in the mediation field.
3. It has been said that in a divorce the only parties truly non-responsible for the turn of events are the children. Mediation process offers opportunities to remind the parties of their obligations to ensure the mental health of the children of the marriage.
The above examples are only the “tip of the iceberg”. If you are a mediator, consider how your duties may well include providing “full service” to your clients.
The Late Speaker of the House during the 1960’s Sam Rayburn (D-Tx) was known as a taciturn person. It was unique for a politician to speak as sparingly as did Mr. Rayburn. When he was asked about this, the Speaker indicated that he had learned that “you learn more from listening than by speaking”. A good mediator listens a good deal more than he speaks. By listening to the parties, watching their body language, etc. a great deal can be learned about what a possible resolution of the dispute at hand might look like. Good listening skills lead to good, incisive questions. That in turn gets at the heart of the matter; what are the interests (not positions) of the parties to the dispute? This information can eventually lead to Win-Win.
A discussion on listening skills by the writer, Martin Rosenfeld, can be found in succinct form at this site: