Compassionate Mediation/Martin Rosenfeld, JD

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.

Hidden Costs in Divorce/Martin Rosenfeld, JD

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.

 POVERTY

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.

MENTAL HEALTH

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?

The Power of Mediation/Martin Rosenfeld, JD

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:
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Creating New Mediated Options/Martin Rosenfeld, JD

It is rare that there will be only one option for a resolution of a dispute. The goal therefore is to find the option that both parties will embrace. The authors of “Getting to Yes” refer to this as “options for mutual gain”. An example of this would be the resolution to the Cuban missile crisis of 1962. The US found the presence of Russian missiles on Cuban territory to be an aggressive and illegal act. However, the Russians needed a face-saving device before it would agree to dismantle the weapons. The US suggested that it would dismantle its (obsolete) missiles on Turkish territory as a quid quo pro. In this manner, the Russians could explain to their citizens that they received the “prize” they wanted, and could therefore justify its decision to backtrack on the Cuban missiles.

Creating options:

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Interests V. Positions/Martin Rosenfeld,JD

Bruce Patton is a co-author of “Getting to Yes: Negotiating Agreements Without Giving In”. Mr. Patton describes the typical negotiation as follows: strong demand, counter-claim, and concession. The agreement involves, often enough, splitting the difference. If there is no agreement, there is an impasse. The alternative is the model we know as Win-Win. The model instead provides the following:

-A problem-solving atmosphere where options are brainstormed;

-No demands or threats; and

-A mutual exploration of interests of all. This includes needs, hopes, and concerns.

Which model sounds better to you?

POSITIONS V. INTERESTS/Martin Rosenfeld

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The Impasse/Martin Rosenfeld, JD

What can a mediator do when the parties seem to have reached an impasse in their discussions? Some options may include the following:

*Remind the parties, if they have children, how a non-agreement may place a disproportionate burden on their children. Parties may be happy to attempt to pulverize each other, but how many parents want to see their children harmed?

*Have the parties consider how the alternative to an agreement (i.e. litigation) will likely be exponentially more costly, both in dollars and psychic pain, than any mediated agreement they may be able to reach. For example, the average mediation is well less than the cost of the average litigated matter.

*Suggest that if they cannot fully mediate their dispute, they agree to that which is doable and then take the unresolved matters to arbitration.

*Give the process a break and let the parties re-convene at a time they feel ready for another “rodeo”.

*If necessary, ask the parties if they will allow you as mediator to move out of your neutral stance and offer your opinion as to how they can resolve their differences.

*Remind them that nothing will be more satisfying to them, in the long run, than to know they worked with civility and sensitivity, to come to an agreement that they can both be proud to “own”.

*Ask the parties, what they would like to do if no resolution is found. “Mediate don’t litigate” is more than a convenient saying. Mediated agreements really make sense and is worth the effort that may be required. Mediation may not always work but it has a proven track record of success. Keep this in the forefront of all post-impasse discussions.

Silence as a Strategy/Martin Rosenfeld, JD

Phyllis Polack, a prolific writer on mediation, recently penned “Silence is Golden” at https://www.mediate.com/articles/pollack-silence-golden.cfm. The gist of this piece is that effective mediation requires the gift of listening. However, at times, a mediator may choose to resort to the use of silence. Pausing in silence, can be a powerful tool. As an example, think of the words of FDR that “the only thing we have to fear [PAUSE} is fear itself.” Why is silence so important? At times, it may be needed to allow the parties to digest what has already been said. In addition, saying nothing can make the parties unnerved. They may well choose to fill the void with important thoughts or opinions. This could well be what is needed to break an impasse that has occurred. Or it may simply indicate that the other party has been heard. It was Will Rogers, the humorist, who said: “Never miss a good chance to shut up”. In a mediation, it is not always what you say. It can also be what you do not say and when you choose not to say it. Mediate don’t litigate.

Difficult Mediation Cases/Martin Rosenfeld, JD

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.

Mediation Etiquette/Martin Rosenfeld, JD

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.

Arbitrate, Mediate or Litigate?/Martin Rosenfeld, JD

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.