Recent Blog Posts in October 2010

One reason why people become "stuck" is that they develop patterns of dealing with conflict, over time, with their spouses, domestic partners, employers, children, inlaws, and just about everybody else. We respond in repetitive types of ways. These can be likened to unconscious "strategies" in the sense that we rarely make a decision to employ one pattern or another. The patterns can become conditioned over time, and may become a part of how we have structured our personalities. They may or may not be the same pattern in dealing with every person, or the same pattern that will arise every time, but patterns do develop. Very often the conflict patterns of other people trigger our own in specific and even predictable ways.

If you are considering mediating your family law matter, it may be helpful for you to reflect on your conflict interaction patterns. One important reason why is that conflict patterns provide a strong argument in favor of using mediation instead of some other dispute resolution method like the Courts, violence as an extreme example, or just plain arguing or disruptive conduct (yes, each of those can be a strategy for overcoming conflict). 

At DFMS we suggest that some form of peacemaking is the only approach that resolves disputes - the others just impose outcomes and call it a "result" or perhaps a "consequence."

In general terms there are three primary patterns that persons in conflict employ or express as a coping mechanism: Accommodation, Avoidance, and Control. They manifest in behaviors and speech, or the seeming absence thereof. They tend to look like this. Do any seem to fit your style of dealing with conflict more than others?

Accommodation

• Giving in
• Playing the victim
• Attempting to pacify the other
• Deference to the law
• Deference to the mediator
• Emphasis on sense of personal inadequacy
• Wanting peace at any price
• Failing to assert one's own needs

Avoidance

• Refusing to participate in mediation, litigation, or even conflict itself
• Avoidance of differences
• Indecision
• Withdrawing behaviors (refusing to engage and isolation)
• Going off on tangents
• Being overwhelmed by complexity
• Difficulties processing information
• Wanting it over at any cost

Control

• Dominating the other party or the process
• Seeing only one's own interest
• Rigid positions and outlooks
• Blaming behaviors
• Shaming behaviors
• Threatening behaviors
• Inability/unwillingness to view situations in different ways
• Acting in ingratiating ways towards the other party or the mediator

• The avoider avoids, and his or her interests are not protected
• The accommodator accommodates, and so sacrifices his or her interests
• The controller controls, tramples the interests of others, and their own as well

Mediation holds the promise that these patterns, including the triggers that the cause them, can be understood and real choices can be restored that are much healthier for all concerned.

• How much stuff is there and how long were you married? If you are dividing pots and pans and a small apartment full of furniture, without more, then chances are you don't need a mediation. 

• If there are no issues of spousal support or child support, or if what you propose to agree on is indeed perfectly adequate and fair to each of you (and you both know that to be so), then mediation might be an unnecessary cost for you.

• If there are no issues over repayments of loans to parents, no residence to divide or sell, and if the two of you really have no ongoing ties that will bind you together in the future in terms of finances or other people, mediation might not provide an added value to the quality of your divorce.

• If each partner has been and remains able to talk respectfully towards the other, and to behave with fairness and dignity, mediation might be superfluous.

• So long as there really are no imbalances of power, such as for instance one party who has decided there is nothing to disagree over and then sets about convincing the other that this is so, then mediation may not be necessary to protect the interests of either party.

But it is our experience that there are usually issues and agendas that lay beneath the surface of what each party voices. Many times the parties have assumed conditioned roles or "conflict patterns" (for instance "accommodation" or "withdrawal" from conflict, something I will separately blog because it is so unconscious and yet so important to understand) that mask or shortcircuit a full and fair resolution of the matters that must be settled in divorce or partnership dissolutions. If those patterns are not honestly looked at and addressed, then someone's interests will likely be damaged no matter how "friendly" or "amicable" the separating is expressed as being.

Mediation is the parties' process, not the mediator's. Just as both partners must be on board to attempt mediation, we believe that both partners ought be on board in believing that it will not assist them assuming they are otherwise willing to consider it. Sometimes one person has not really expressed that they would like to discuss in a safe setting what the agreement that has been reached really means, or inquire whether it is fair or whether there might be a better alternative. 

We are available to assist you whenever you feel that exploring mediation might benefit one or both of you! This is a topic that is appropriately raised at the Orientation meeting, or at any time once the mediation commences.

Thurman W. Arnold III 

The American Bar Association's Model Standards (2000) define mediation and affirm its importance and core values that can help guide consumers in choosing their mediator. At DFMS we subscribe to these voluntary standards:

Family and divorce mediation is a process in which a mediator, an impartial third party, facilitates the resolution of family disputes by promoting the participants' voluntary agreement. The family mediator assists communication, encourages understanding, and focuses the participants on their individual and common interests. The family mediator works with the participants to explore options, make decisions, and reach their own agreements.

Family mediation is not a substitute for family members' obtaining independent legal advice or mental-health therapy. Nor is it appropriate for all families. However, experience has established that family mediation is a valuable option for many families because it can:

• increase the self-determination of participants and their ability to communicate
• promote the best interests of children
• reduce the economic and emotional costs associated with the resolution of family disputes

At DFMS we are committed to the best practices in Family Mediation in the State of California.

The question of mediators talking to one party in the absence of the other can come up in a variety of contexts. This Blog discusses initial contacts from one party, often when they are simply seeking to learn about our services or other general information. We hope that this website can itself answer as many of your questions as possible, without the need for any direct contact outside of the mediation rooms between participants and mediators and before the Orientation or Initial Mediation Sessions. We are eager to talk to you both whenever we are all together!

At DFMS our mediators attempt to avoid speaking to either party directly outside the presence of the other. This includes what we call our "Intake Process." The only exceptions generally involve scheduling an Orientation Meeting, or when a client calls who happens to catch us answering a phone. Instead we attempt to filter your initial calls through our non-mediator resolution assistants.

If we do wind up speaking with you, please understand that we will decline to discuss your case, your position, the facts, your expectations, the other party, or anything that would tend to enlist us outside our positions of neutrality. We are not being rude.

I have been asked 'well, since you aren't deciding our cases or acting like a judge, what is wrong to talking to you outside the presence of the other party?' My answer is usually something lilke this: "If Jane was wanting to have this conversation with me, and asked I not tell you, Joe, about it or insisted that it didn't matter what we discussed, would the mediation process feel safe for you?" 

There are two aspects to this dilemma: (1) it is essential that your mediator actually be neutral and unbiased in order to protect the integrity of the process, and even seemingly innoncent conversations tend to create an unconscious bond between participants and (2) it is equally critical that there be no appearance of bias, meaning that certain boundaries must go into effect from the first communication so that both sides are convinced that the process is fair. 

However, this is not to say that you and the other mediators at DFMS, along with your spouse or partner, can't jointly decide to a different arrangement once the mediation process is underway if everybody - including your mediators - agree. However, this will be rare.

Mediator Jane E. Shatz

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