Can mediation work between a wife and husband in a divorce action, where communication is poor between them? The simple answer is “yes”. The more complex answer is “What alternative is there?”
A trained mediator can get a couple with poor communication skills to mediate successfully by creating a safe and nurturing “space” for the mediation. The fact that mediation is faster and less costly than litigation adds a motivation for the couple to bridge the communication gulf that separates them. This is especially true where areas of commoon interest such as “co-parenting” are discussed.
The skilled mediator can elicit discussion by questions that zero in on the needs of the two parties. Few people will pass up the opportunity to discuss the nature and extent of their needs. In addition, mediation will help the couple develop better communication skills with which to face future disputes. This is a more useful skill than learning how to get into a litigation mode every time a new challenge is presented.
Nobody getting divorced wants to get into future wrangling once an agreement is reached. However, studies show how mediated agreements often result in full, future compliance. This is not true for agreements reached the the adversarial model of litigation. Studies consistently show that compliance with mediated agreements is close to 90%. The rate of compliance with agreements effected by the adversarial approach is a good deal lower. (As an example, a Colorado study showed that parental disputes that had been resolved by litigation were 50% more likely to be re-litigated than agreements reached by mediation.)
Should a couple with communication difficulties mediate or choose to litigate? If having lower cost, less trauma and quicker results is important, mediation makes sense. Litigation does not.
A post appeared on mediate.com in August 2018 on sample Mediation Ground Rules. It was written by James Melamed, and it contained 12 rules to ensure an orderly and successful mediation process. I will “cherry pick” 4 of the Melamed “rules” and add a fifth of my own. These rules are basic, civil, and quite necessary to ensure confidence in the mediation process. They are primarily geared to divorce mediation but apply, in large part, to all mediations.
1. Parties should wait to talk until the other party concludes her/his remarks.
2. The parties should use each other’s name and not “He” or “She”.
3. Listen respectfully to what the other party is saying.
4. Agree that no further adversarial proceedings take place while the mediation is continuing. If this rule cannot be kept (e.g. the Court is demanding that the parties appear on a matter), proper notice must be given to the adversarial party.
5. Finally, I add this: All discussions involving the children must be aimed at achieving the “best interests” of the children.
Basic rule: You may have adversarial interests to another party, but civility is always required. Mediate don’t litigate.
An article outlining the differences between mediation, arbitration, and litigation was prepared by the staff of the Program on Negotiation (PON) at Harvard Law School. The article can be found at: http://www.pon.harvard.edu/daily/dispute-resolution/what-are-the-three-basic-types-of-dispute-resolution-what-to-know-about-mediation-arbitration-and-litigation. The article describes mediation as a process that engages the parties. The main figure in arbitration becomes the factfinder or judge. The actors in litigation are the attorneys. One can make the decision that is best for their circumstance. Would you like to be the central player as the parties are in mediations? Do you prefer the easier track of having a third party decide the matter for you. Or would you prefer to let the “warring” attorneys try to jawbone until an agreement or a decision is finally reached? There might be reasons to prefer the latter two options. However, if you desire Win-Win, and an easier and less costly solution, you will be well advised to avoid litigation. Mediate don’t litigate.
Studs Terkel was an author, actor, and media presence for decades. In his memoir “Touch and Go” he explains the art of gaining people’s trust in the following way: “The person recognizes that you respect them, because you’re listening. Because you’re listening, they feel good about talking to you.” How does the process of mediation work? For that matter, how does the process of talk therapy work? It is all about respect, and it is all about listening. Mediators have known this for decades. But the human condition works along the same pattern. Listening engenders respect. People like to know they are being heard. Once that element of respect has been formed, further talking becomes inevitable. Talk long enough and you will get to Win-Win. But it all begins, says Mr. Terkel, with respect. Mediate don’t litigate. Litigation leads neither to added respect nor to added purposeful conversation. It will never be an adjunct to mediation.
When historians rate our presidents, they focus on achievements. A likely question is this: How should this person be remembered? What will history think of them? The concept of legacy has surprising nexus to dealing with stressful disputes and negotiations. How it might work will be illustrated by reference to the work of David Brooks of the NY Times.
In 2015, Mr. Brooks wrote a book called “The Moral Bucket List”. In this work, Mr. Brooks divides virtues into two categories. There are resume virtues and moral virtues. Although we spend more time in life trying to develop our resume virtues, we tend to believe that eulogy virtues are more important. How do we wish to be remembered after our life has ended? Hopefully, our eulogy will have less time spent on the jobs we had, with more emphasis on the type of life we led.
If you are involved in e.g. a divorce battle, it is highly likely that having an expert litigator will get you a better financial deal. You will possibly pay less for child support, or for alimony, or a more favorable property split, etc. But at what price will this agreement come about? What will your friends think of you in the future, if you have engaged in contentious battle? What will you children think of you in the future. What, indeed, will you think of yourself in the future? Money is not everything. Moral virtues may very well be so. Want to run up a bucket list of virtues? Seek peace and not necessarily the bigger war-chest. Mediate don’t litigate.
I first took a course in mediation in 1995, in Chicago, IL. One of the volunteer trainers who assisted in this course, called me a number of months later. He told me about a very interesting mediation course that had a very reasonable program fee. I asked why this course was so modestly priced. I was informed that the program was under the auspices of the Mennonite group that is centered in Lombard, IL. This group, I learned, has a religious reason for trying to advance information about mediation.
The Lombard Mennonite Peace Center (LMPC) has as its religious mission the desire to encourage “nonviolent transformation” of conflict in homes, workplaces, and houses of worship. Recently I browsed the internet to learn more about the LMPC. I discovered an article that appeared in the Toledo Blade entitled “Mending Fences”. (May 28, 2016). The author, TK Barger, described a lengthy program that the LMPC offered to Midwestern faith leaders. One of the participants, Rev. Deborah Rose, summed up what she gained from the program by saying that she did not attend the program to learn how to be a mediator. This was not the purpose of the program. Rather, she wished to learn new skills that could assist her in her congregational life. Sometimes, it is good to learn a new skill, such as mediation just so one can make proper referrals to professions when such mediation is appropriate.
The purpose of this blog is not to train mediators. There are professional classes for this purpose. I wish to give the religious population a better idea of what mediation entails and relate some of its important principles. It is my hope that the information found here will assist those whose life of faith leads them to the conclusion that litigation is not the solution to all forms of conflict. There is a choice. Mediate don’t litigate.
My name is Martin Rosenfeld, and I am a mediator who lives in Fair Lawn, NJ. This blog is aimed at people of all faiths who share an interest in making their life one that is dedicated to peaceful outcomes. We all try to avoid conflict, but sometimes we find ourselves enmeshed in controversy and discord. As an attorney, I have seen the harmful effects of litigation and confrontation. Fortunately, there are peaceful ways of resolving disputes. One such method is known as mediation.
In this blog, I will provide information about mediation process and strategies we can all use in an attempt to try to avoid conflict. This information will be aimed at those parties whose religious connection makes them attracted to the idea that conflict is not always inevitable. There are ways that this can be avoided, by resort to mediation. It is also my hope that religious leaders will learn a bit about mediation technique so they can employ some of these methods when their congregants face conflict situations such as monetary, claims, family disputes, divorce, etc. In my next post, I will explain a bit about what inspired me to write this blog for those of faith. If anything you read strikes a chord, feel free to write to me at: Rosenfeld@juno.com. You may also call me at: 201.794.4545 if you wish to share any mediation questions with me. (More mediation information may be found at my website: http://www.NJMediationWorks.com).