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.
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.
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?
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.
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: