Bridging Differences in Divorce and Family Mediation
By Diane Cohen
Mediation trainings often do a good job of educating mediators regarding such matters as organizing the process, reframing, reflecting and summarizing, but often short shrift is paid to the actual guts of mediation: helping parties bridge their distances. Mediators talk about the difficulty of getting past “impasse”, while, ironically, impasse is, arguably the reason parties seek a mediator in the first place.
From discussions I’ve had with other family and divorce mediators, I have the impression that when confronted with disagreement between the parties (a normal state of affairs in mediation), many mediators will often resort to taking a position about the issues and pressuring one of the parties to compromise. This, however, goes against the very tenets of good mediation practice. Parties should be given the opportunity to come to a resolution of their making and choosing. Otherwise, they have been short-changed and the benefits of mediation lost. After all, if the parties want someone else to resolve the matter for them, they could go to court or an arbitrator. If they want to be told what to do, they could go for non-binding arbitration or neutral evaluation. But if they want help in coming up with a resolution of their own choosing, mediation is the only option. At this juncture, I would also add that some mediators use the “law” or the “needs of the child” as a basis for directing the parties. However, it is up to the parties whether they wish to agree to come to the same resolution a judge would order. And both the “law” and the best interests or the needs of the child are often extremely unclear and open to debate. So, the question remains: how can a mediator move parties toward resolution?
The answer to that question begins with an observation: the mediator is an expert — or should be – in conflict resolution; while the parties are experts in the facts of their dispute and in the nature of their own personalities and lives. As such, the mediator can be most helpful when guiding the parties toward productive dialogue, rather than toward a specific resolution.
While it is often the case that the very act of helping the parties feel heard will move the parties toward resolution with little additional help, it is also often the case that parties come to mediation because they are truly stuck. Mediators who are confused about how to approach “impasse” – the natural state that parties are in when they enter mediation – are not doing the job of a mediator. For any mediator, the act of “mediating” or moving the parties past “impasse” is, however, one that is an art rather than a science and not subject to formula.
What then is the “art” of mediation? The “art” is in finding a way to help the parties understand what would, in their particular case, be a productive dialogue at any given point in the mediation. The first step is to educate the parties about how mediation works, and what role they can play to make it work. I often find it helpful for the mediator to make a useful observation about where the parties are in their dispute and what needs to happen in order for them to move forward. After making that observation, I often suggest an open-ended question for them to consider. If the question is intrusive, I do not actually ask them to answer it. I make it clear with my attitude that I will be respectful of the privacy of their thoughts. Parties will usually voluntarily share their thoughts if it will help the matter move forward. Alternatively, they sometimes seem to reconsider their own thoughts and decide not to share them, but on re-thinking, change their positions. Thus, this method of presenting questions is often quite effective as well as respectful.
So, how does one move the parties closer together?
(1) Educating the parties about how conflicts get resolved. It is often helpful to explain to parties what type of thinking and dialogue they need to have in order to come to an agreement. For instance, if parties come in with positions which are diametrically opposed, it is helpful for the mediator to explain what they will need to do if they want to come to a resolution. So, for instance, if the parties both want the child to live with them most of the time or both want the same asset, I will first summarize the parties’ positions clearly and succinctly so that the parties can understand that the two positions are incompatible, I may point out that it seems to be logically impossible for both of these things to happen – and ask: what thoughts do you each have? How can we (I often use this pronoun to emphasize that the parties and myself are a team) help you each achieve the essence of what you want to achieve here even though the specific results you are asking for are incompatible? I may phrase it in such a way that I don’t expect an immediate answer, but that this is ultimately the question that needs to be resolved and that it should inform their thinking through the process. I will go back to it again if it appears that they need a reminder. But, often, the parties catch on to what the process has to offer and appreciate it as a new and valuable type of process for them.
Depending upon the attitude of the parties, I might explain that the issue in question will of necessity be decided, and if not by them then by a judge. I might further add that one of them will end up not getting what they want. I may even note that perhaps one or both of them feels comfortable leaving it up to the judge and confident that they will get what they want from the judge. Perhaps neither of them feels that way. And perhaps they do or do not have a reasonable basis for that belief. With this as background, I can then explain: if you do want to come to a decision here rather than take a chance on letting the judge decide, then we will need to find a way to satisfy what you both want to achieve since neither of you will agree to something you don’t want. Do either of you have any ideas about how to do that?
In other words, the mediator educates the parties about how disputes get resolved, and reminds them that they do not have to resolve the matter in mediation, but that there are logical consequences if they do not. If the parties continue to want mediation after they understand what is involved, then they are generally more attuned to what sort of approach on their parts is likely to lead to resolution. If they agree to mediation, they in essence, agree to develop improved collaborative skills, and will begin to learn to think about their goals, to consider their options, to try to understand both parties’ underlying interests, to move off their positions and think outside the box, and to be aware of their commitment to the process and the ramifications of their commitment or lack thereof.
It is possible, after understanding what mediation involves, that the parties may decide they want a neutral to decide matters for them or to offer an objective opinion, whether in neutral evaluation or otherwise. If so, the parties can ask for a different process (whether or not the same mediator would be the neutral in that other process is beyond the scope of this article). If they choose to work in the mediation process after understanding what is involved, they are implicitly agreeing to do the hard work of collaboration with the mediator as their guide in how to work collaboratively.
(2) Helping the parties think about why they are taking the positions they are taking. In facilitative mediation, mediators are used to looking for underlying interests and needs. In my view, mediators should go beyond this and have the parties consider why they are taking the positions they have adopted. The reasons may include interests and needs, but may also include reasons that are less concrete, more psychological or psycho-social. Some parties may adopt certain positions because they think society expects it, because they are afraid to lose face, because they think they “should”, that it is intrinsic to their identity as a mother or father, as a “winner” or a “success”, or for myriad other reasons that may not really be traditionally considered “needs” or “interests”. As a mediator, one does not judge the reasons of the parties, but allows them to reflect upon them and reassess whether they find these reasons compelling. This reassessment may go on internally, and may not, appropriately, be the subject of the mediation. Parties may not wish to discuss the real reasons for their positions. However, the mediator is not powerless to pose questions for the parties to consider on their own.
In order to help the parties think about possible types of resolutions, the mediator focuses the parties on the reasons for their positions. That way, they can begin to think about whether they believe in their reasons, whether they want what they say or think they want, and whether something other than their position will satisfy their underlying reason. As noted above, in asking questions, I believe it is important to be respectful of the privacy of each party and their thought processes. So, rather than ask a question, I pose a question but don’t actually ask it.
As an example of the foregoing, I might say: “You each feel strongly about having the child live with you full time”. I wonder if it would be helpful to talk about why you want the child to live with you most of the time. Would that be a helpful thing to talk about?
In response to this type of question, parties will usually simply give their reasons, or begin to consider what their reasons are. The answers are invariably helpful in moving parties toward thinking more expansively about what they would be happy with. When a party reflects upon their reasons he will generally find other ways of satisfying the underlying motivation, will be more persuasive to the other party in explaining their deeply felt reason, or will reconsider the position completely and drop it. Sometimes, this does not happen immediately, but it sets the parties on the road to it.
Sometimes, a party will respond by asking a question instead of stating a belief. This is often an indication that the party does not personally feel strongly about the matter. So a mother might say: Shouldn’t a child live with the mother most of the time? In response to this, I do not answer and I make an effort not to appear to have an answer, since any answer I give may give support to one side or the other. If pressed, I may explain that there is really very little that “should” happen, and that it is all a matter of what the parties want.
(3) Helping the parties identify their dilemmas. It is not surprising when parties are unsure about how to resolve the major decisions that form the very subject of a divorce. They may have entered the mediator’s office without any thought or knowledge of the spectrum of issues which need to be decided in negotiating a separation or parenting agreement, and are now called upon to make a decision. The mediator should be aware when the parties are having trouble deciding what they want and should reflect that back to the parties and ask what they might need in order to help them decide what they want. Do they need time to think about it? Would a consultation with a friend, relative or professional be helpful? Perhaps they would like to do some research on the subject in question? Letting the parties know that it is normal and appropriate for them to be uncertain regarding these important issues is respectful and appropriate, and will help the parties begin to move forward toward figuring out what they want. It is often the case that one party is more ready than another to make decisions. However, both parties need to be ready for a meaningful discussion to take place. Nevertheless, if one party desires a quicker resolution in the mediation process, the parties may wish to discuss the pace of the mediation as an issue.
(4) Seeking clarification, details, and examples. The mediator can and should generate movement in the discussion by asking the parties for examples to flesh out and illustrate their general positions. Seeking detail about the parties’ positions can also help break down the matter into smaller parts or make the issue more concrete or easier to understand and address. Alternatively, if the parties have been too specific and have not expressed a general plan, but only given examples, the mediator may want to focus the parties on turning their examples into a more concrete solution.
(5) Outlining and pinpointing the disagreement. One of the services the mediator must provide is to be organized and clear-thinking even while following the parties’ disorganized thinking and approach. So, the mediator must be able to see both the forest and the trees and keep track of the discussion in such a way that the mediator can reflect back to the parties the outline of their discussion. At any point in the mediation process, the mediator may need to turn the parties’ attention to matters that are as yet unresolved or incompletely resolved or which may need to be addressed as a consequence of agreements they have tentatively reached. Without the help of the mediator, parties will often fall back into generalized arguments or discussions or accusations, and will not recognize that discussing specifics is the way to resolution. The mediator may also be able to step back and give perspective occasionally and remind the parties that each of the issues is part of a larger set of issues and that it may be useful to look at the whole set occasionally and then go back to looking at the individual issues to see if that helps in thinking of ways to resolve them.
(6) Helping the parties avoid unproductive discussion. Parties sometimes begin to get the hang of discussing their conflict and the mediator can seemingly sit back for a while and watch them discuss, explain, elaborate, pinpoint, analyze and negotiate. The mediator, however, while proud of bringing the parties to this point, can not rest on his laurels. Instead, he must be poised to notice when the conversation takes an unproductive turn as it almost inevitably will. At that point, the mediator should note for the parties how productive their dialogue had been, and should summarize all that has been tentatively decided and agreed upon. If the mediator needs to interrupt a discussion that has evolved into accusation and blame, the mediator may say something like the following: I just want to point out that you are discussing something that has happened in the past and that may be difficult to agree upon. I don’t know if this is something that is productive to discuss at this point. Perhaps you can each consider whether this discussion will help you resolve the matters you came here to resolve or whether you want to have the discussion for any other reason. This phrasing is respectful but also reminds the parties of what they would like to accomplish and even the fact that the meter is running. Often, parties will respond by saying they do not need to have the discussion. Sometimes a party will say that they want to have the discussion and explain why. The mediator should allow the discussion to go on if both parties are willing after being cautioned that it may not be productive.
(7) Getting past generalizations; reality testing. Sometimes impasse is simply a result of parties not having thought about or discussed the matter deeply enough to know what they think, what they want or how it will work. Focusing on these specifics will help illuminate whether there is truly a conflict, or whether there is room for both parties to have what they want without further compromise. For example, if both parties say that they want the child to live with them, it is not at all clear what that means or whether a schedule can be worked out that satisfies each of their goals. Perhaps what is important to one of the parties is that the child spends as much time with that parent as possible, while what might be important to the other party is that one of the child’s official residences is with that parent, or that the parent is listed as an emergency contact in school, or that the parent does not lose child support, etc. etc. The mediator might say: So, tell me how you envision the schedule working? When would the child be with you and when with the other parent? This takes the “label” of physical custody off the table and gets to the heart of the matter. It also changes the thinking of the parties immediately. Because once the parties begin to discuss the schedule, they may realize things they did not consider before, such as whether they will feel over-burdened by what they are requesting; whether they want more help from the other parent; whether the schedule will work for the child; whether the child wants additional time with either parent; whether either parent actually wants the child to spend more time with the other parent; how the schedule will work with school obligations; and whether one of the parents is willing to take on mundane tasks such as helping the child with schoolwork, planning nutritious meals, bathing the child and getting the child to sleep at an appropriate hour. Addressing all these matters as they come up will bring the parents back to reality about what it means to spend time with the child and what schedule will work best for all.
(8) Highlighting observations that a party makes can identify a potential issue or a possible resolution of an issue or a mindset that if focused upon, can free parties up to move forward. In a recent mediation, one parent noted that things had improved with the other parent recently. I highlighted this observation and mentioned it in a summary of the parties’ perspectives with the expectation that it might lead to further comment and elaboration about what was working well and how to build upon it. The other party, however, disagreed, and felt that things were not working better. I then re-summarized and explained that the first party had said that things were going better because there was less yelling, while the other party felt that things were not going better. The second parent then responded that he agreed that there was less yelling, but that that had occurred because he had accepted the situation and realized what the reality of living apart with a child in the middle actually meant. I then highlighted what I thought he was saying: that he had accepted that the situation of living separately when there was a child involved could never, by definition, be the same as both parents living together with the child. The parties reflected upon this, and it informed their discussions. They were each aware of their own sadness about the situation, each aware that there was no clear solution to that, and each aware that they could not make the situation perfect but could try to come up with the most appropriate schedule.
(9) Generating options. There are many ways to get parties to come up with ideas to resolve their disagreement. Asking them to toss ideas off the top of their heads and making a list of these ideas for later analysis is a time-honored method called brainstorming. This is not the only method. This general idea is for the mediator to ask the parties to come up with ideas they haven’t proposed or perhaps thought of yet in order to expand the possibilities and seek common ground. Brainstorming may be more comfortable for some parties and some mediators than others. Some people prefer keeping their counsel until coming up with ideas that they feel comfortable with rather than tossing off ideas that they have not had time to consider. The mediator should respect the preferences of the parties and be flexible about how to approach option-generation. One method I often use is to remind the parties that since coming to an agreement is voluntary for each party, the parties will not be able to come to an agreement unless the goals of both parties are considered; otherwise one party simply won’t agree. With that in mind, I ask the parties if they can come up with any ideas that might meet the needs of both parties. As always, I pose the question, and come back to it again and again, rather than insist that the parties complete their thinking at any one moment in time.
In sum, the foregoing outline of useful mediator interventions is not exhaustive, but it does cover a great deal of ground. It is meant to illustrate how a mediator can respectfully help parties who truly want to mediate, stay on the collaborative path toward a resolution of their own making.