by Laurie Israel
Mediation is not one monolithic technique. Mediators and mediation theorists may categorize different types of mediation techniques into different theoretical boxes, such as “facilitative,” “evaluative” and “transformational.” But the categories all seem to bleed into each other.
At its core, mediation has as much variety as there are mediators, mediation clients and issues being mediated. Because of this variety and variability, mediation seems more like art than science, with unpredictable pathways through the process, and surprising results, if the mediator gives the clients space to evolve in their understanding of each other and the dispute.
There are various philosophies that swirl around mediation. One says that mediation is “client-directed.” Whatever the clients want, that’s what the mediator arranges in settling the clients’ agreement. The problem with client-directed mediation, is that the skills, background, and experience of the mediator are discounted and not taken advantage of by the clients.
This is true especially in an area such as divorce mediation or prenuptial agreement mediation, where the mediator (generally) has extensive knowledge of the operant law and the possibilities of resolution for each of the issues involved. There is no reason to expect a mediation client to be an expert in divorce law or the laws pertaining to prenuptial agreements. An understanding of these laws are important for the clients, and can enlighten and enrich the process of dealing with the practicalities inherent in ending a marriage or formulating a prenuptial agreement.
But what about that mediation rule that mediators are not supposed to give legal “advice” during the course of a mediation, but can provide legal “information.” What is the difference between legal “advice” and legal “information”? That’s a slippery slope that all mediators deal with on a daily basis.
A mediator cannot pretend that he or she knows nothing about divorce law or the law of prenuptial agreements. That would be absurd, because many of the issues that the clients are addressing are legal ones, and certainly, the clients are not supposed to be experts in the law. So, legal information must be rendered by the mediator, at least initially, subject to input by the clients’ reviewing attorneys (if they have any).
What about the “elephant in the room” that sometimes comes up in mediation? This is the little but very important fact that is unsaid, but lingers in the background, infusing the entire mediation with an element of untruthfulness. That elephant may need to be acknowledged and discussed openly in order to have all the relevant information accessible to make a well thought-out agreement by the clients.
How, when (and should) the mediator bring up the “elephant in the room”? Some of these elephants are quite large and important. Not saying something reminds me of the Hans Christian Andersen tale “The Emperor’s New Clothes.” We as mediators frequently face this issue. Should the mediator say something when he or she sees something, even if the clients have not brought it up, like the message in the subway, “If you see something, say something.” Or should the mediator remain silent until (and unless) the clients bring it up?
Clients engage us as mediators for many reasons. Sometimes they simply view mediation as a money-saving way to resolve their dispute. At times they choose us because they are afraid that engaging attorneys will make their disagreements more difficult to resolve and may be detrimental to their ongoing relationship. They generally, carefully choose their mediator based on the mediator’s experience and background, and also their sense of whether the mediator’s personality and approach will be compatible to theirs.
Mediation clients don’t choose a computer program or a machine. They choose a real person, with intellect, his or her own background and experience, and knowledge of the operant law in their dispute or issue. How silent should the mediator be in the process? When should the mediator follow and when should the mediator lead? Should the mediator say the “truth” as he or she sees it when an issue comes up that the parties may not understand clearly? Or should the mediator remain silent?
The danger being a “truthsayer” when you’re a mediator, is that your “truth” (sometimes unbeknownst by you) may support or give the appearance of supporting the position or view of one or another of the clients. This can happen even if the connection between the “truth” said and a party’s position is quite attenuated, because mediation clients can sometimes be very fragile. As a result, the mediator becomes tainted with perception of bias or lack of neutrality. Usually, this immediately ends the success of the mediation. So being a mediator “truthsayer” can pose great risks to the process.
However, there are also strong benefits for saying the “truth” as you see it, at least sometimes. Mediators often try to appease both sides of the mediation. In doing so, the mediator can be perceived as untruthful, and both sides can lose respect for the mediator and the mediation process weakens. For this reason, a word of “truthfulness” by the mediator can have a powerful effect in mediation — perhaps leading to a resolution, even if it temporarily seems to support the position of one side rather than the other. Both sides can feel like there is a person in the room that can provide feedback that can help them resolve their dispute.
The mediator’s truthfulness should always be balanced with a demonstration of support and respect for other mediation client and should include an explanation of why the mediator sees the issue that way. It’s dangerous, but can move things strongly forward.
If it’s done in a non-threatening way, the other party will also have a chance to express and clarify his or her view. As a result, greater mutual understanding on the issue by the clients can occur. Even small changes in view might lead to resolution on the issue and could have a ripple effect to lead to other agreements in the mediation. Bringing the parties to agreement may be better served by an active mediator, even though much of the activity might be subtle.
The most important factor in mediation success and not allowing the mediator’s “truth” derail the process is that the mediator has respect for both clients. This respect should be evident and actual — demonstrated by words, listening, comments, and structure — or else the moment of “truth” might be too dangerous.
In this safe setting of respect, when the mediator offers his or her “truth” in the right way at strategic times in the mediation, the small changes and cumulative understandings that can make the mediation successful can be greatly facilitated.
© Laurie Israel 2013
As published in The Huffington Post, 9/10/13.
by Laurie Israel
We live in a very fast world.
Information is shared instantly. A public figure might do something at 9 a.m., and by 9:15 a.m. it’s all over the Twitterscape and Facebook. By 10 a.m. it is on the internet, which now functions as mainstream media.
Remember the beginning of email? Email was a major breakthrough that changed the way people communicated. Work has become more efficient. Personal exchanges are facilitated. Text messaging is even faster than email because you hear a little beep on your smart phone and, of course, you are impelled to respond. Text messaging is now a primary way people under 40 (and some older) communicate in their daily lives.
The rapidity of communication promotes “hot” speech. “Hot” speech is angry and ill-considered. It is made without much forethought when in an excited or emotional state.
For instance, you get an email containing statements, some of which you disagree with. You respond immediately. Since you can’t help but check your emails every three minutes (time yourself), you notice the response to your response, to which you respond. This causes a flurry of emails with a great deal of reaction but not a lot of reflection or forethought.
But the very “hottest” speech and the most uncontrollable is when you are actually speaking with other people face to face. This “live time” talk goes on without the pauses for thinking and composing your thoughts that can occur when you write an email or a text message.
Hot speech between spouses can be very damaging to a marriage. When you’re with your spouse, you don’t have to act as civilized as you do in social situations with friends or at the workplace. With your spouse, the boundaries are lowered. In marriage, sometimes, people act at their worst – because they can with that one person. Spouses tend to let everything hang out. That causes a lot of problems and can even lead to divorce.
In my work as a marital mediator, http://maritalmediation.com, I’ve worked with couples whose communication is at a low point. Everything out of a spouse’s mouth seems (and actually might be) negative. There is anger and frustration in every verbal interchange. Contempt is rampant. The reactivity gets worse and worse. The couple can’t seem to break the pattern of negative interaction. It is clear that these people are headed for divorce. No one can live that way!
In situations like this, I use a special technique. I call it the “writing-notes-in-longhand” technique. It is very effective in breaking through negative communication patterns.
Here’s what I do.
I ask the couple to do the following as homework for an entire week: Make sure all communication during the next week is by handwritten notes. And I mean all communications. Even the mundane ones, like “Can you walk the dog now?” And I mean handwritten – not email, and not text messaging.
This does several things:
1. It slows down the “hot” speech. Now you have to sit down and handwrite a note when you want to say something. You really have to think when you write. Writing in longhand slows you down. Your spouse (or partner) has to do the same. It’s like taking an adult “timeout” before reacting. It builds in time to consider the other’s point of view and how you want to express yourself in the most effective (perhaps even kind) way.
2. The slowdown changes the entire tone of the interactions. Writing communication in longhand promotes accurate and precise formulation of issues. It helps you collect your thoughts and contemplate what you want to say. Anger dissipates quickly. Emotions calm down. Furthermore, reading what your partner writes gives you a chance to absorb what the other has said without your limbic brain (emotions) getting in the way.
3. By slowing down the verbal interchange, you can focus on your concerns and needs in what you write. This is consistent with a mediation technique which is to focus on a party’s “interests” rather than “positions”. When you hold to “positions”, it leads to non-thought and anger, and leads to stalemate. Identifying and expressing your “interests” rather than your “positions”, you and your partner can enter an area of understanding and mutual accommodation.
4. When slowed down, a couple starts to see the fallacy in their anger. Often the anger is caused by miscommunication, misunderstanding, or a lack of compassion. Slowing down helps you see the other person’s point of view and promotes sympathy and respect.
5. Remember that anger is an emotion. Nine times out of ten, anger is an illogical or overblown emotion to the situation you are reacting to. Anger is destructive. Writing communications promotes logic and generally stops anger it in its tracks. Then you can start really dealing with the issues at hand.
6. Anger is not a good thing. Some of the modern psychological literature says that anger is a healthy response and you should not suppress it. I disagree with this conclusion. I think anger builds anger, both in the person expressing it and the person receiving it. It’s not a good way to solve problems. By taking a timeout, you can become calm. You are no longer in “real” time. Emotions abate. When you write, you will probably express your frustration in a more rational and less confrontational way. It’s good to be pacifistic in your communications – especially with your spouse.
So give the “writing-notes-in-longhand” technique a try. It promotes a calm and placid atmosphere where people can feel heard and accepted. It’s a place where people can be thoughtful instead of reactive. It helps you lead by your mind instead of being led by your emotions. It’s a manifestation of patience. And patience can lead to many good things, including regaining a loving space with your spouse or partner.
© Laurie Israel 2013.