Recent Posts in Mediation Process Category

Litigation Is The Default Strategy For Adjudicating Conflict

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Realities of Divorce Court and Limits On What Judges Can Achieve

• Although a marriage or domestic partnership dissolution is only about the parties lives and their children, if any, at all times the parties themselves are the least empowered and important persons in the court process.

• Judges are the most important decision-maker in family courts. They are adorned by the symbols of power. These include robes, a bench that is placed higher than any other seat in the room which focuses every occupant's eyes on their august presence, deputies who carry loaded weapons, the flags of government, titles of honor, Latin phrasings and more.

• As the deciders and dispensers of "justice," as a practical matter they are beyond challenge, cannot be questioned, and rule the process much like any mini head of state. There is some reason for all of this within the adversary process, if we are to consent to being governed (requiring that we hold faith in the governor's fairness and wisdom). Judges should be viewed as the personification of justice and the utmost decorum must be maintained; moreover, these symbols are also hoped to remind the judges that they serve by the will of the people who appear before them.

• At the same time, judges are merely people like every one of us. They have all the same biases, quirks, temptations, personal histories, and vulnerabilities. Judges have specialized training about ethics, bias, and managing the power they are granted in a manner that instills confidence. But no matter how you slice it, when power is ceded there is always a risk of abuse. With family court judges in particular, many of whom actually dread the assignment, being faced with stubborn disputes day in and day out carries the risk of reactivity, cynicism and sadness, tendencies of becoming lost in self-importance, frustration, and general burn-out and even a desire to flee. Whenever we grant people with power over us we tend to imbue them with god-like qualities. Although understandable this imposes quite a burden which is neither fair nor realistic. Judges are not gods.

• The fact is that some family court judges have no particular expertise in family law. We make a leap to faith that they do, but I am telling you this is not true. Should a well-meaning carpenter repair your car?

As is to be expected, people in the midst of relationship transition are experiencing a deep range of emotions that include varying levels of personal distress. For some these are manageable when mediation commences, but they may become inflamed by something that is said or felt during the process. For others anger or hurt is always evident as an 'elephant in the room'. Given sufficient provocation and intensity these dynamics can surface and threaten to derail the mediation.

This is particularly true when participants engage in persistent back and forth accusations and recrimination during the sessions. We encounter this with many families to greater or lesser extents, and we hear of it as back stories that erupt as arguments that the parties later report. This is all quite natural - family law cases are underpinned by powerful feelings about any number of subjects, each containing sharp hooks where people can find themselves caught and polarized in an instant.

Similarly, when strong emotions are used to justify and link to self-serving concepts of 'fairness entitlements' or to purely 'legal rights', threads that might lead to potential mutual interests and joint benefit win-win situations seem to fray or become knotted. Parties may begin to lose hope.

The impulse can be to end mediation, believing that Family Court is now the only way to end the dance. This may or may not be true for your matter. Mediation does require that both parties be willing to work together at pivotal junctures, and one party alone cannot do all the heavy lifting. But we hope that you not resort to litigation just because passions repeatedly challenge you (and the mediator) - after all, this tension may have been one reason you decided to mediate in the first place and is not news. Years working with families within the adversary system have demonstrated for us that people suffer immensely by adopting that course. Moreover, we have found that stubborn patience pays dividends and that cases that seemed impossible have ended well. When confronted during mediation by the other person's deep anger or you own, we urge you to stay the course.

By looking at what underlies intense negative feelings we all can be helped to better understand how resentment ripens into judgments that interrupt or render impossible the openness required for crafting workable resolutions. It is possible to "out" these judgments in ways that help to diminish the otherwise co-optive power they can assume over wise and sensitive decision-making.

We acknowledge that this can be a daunting task. The idea of investigating the reasons why we feel and what (pain?) we feel can be really frightening. It can sound like a replay of what is bringing the relationship to an end, of which you've had enough. It could also become another place to swirl and twist, and so it requires that the subject be approached with earnestness and integrity. For this is the rub: If parties to mediation remain fixed within an overriding anger, or the hurt that underwrites it, they are not likely to move on with their lives (or to achieve a settlement) in any satisfactory or healthy way. Each party's willingness to investigate what is transpiring a little more deeply may be a key that unlocks the door to an improved level of freedom for both. Together we can try to work through to it.

Partly because of these recognitions, DFMS mediators Thurman Arnold and Retired Judge Gretchen Taylor spent the past six days training with a small and passionate group of professional mediators under the supervision of Gary F. Friedman, Jack Himmelstein, and Norman Fischer. These gentlemen comprise the "The Center for Understanding in Conflict & The Center for Mediation in Law", based in Mill Valley and New York City. Gary is a peacemaking trainer, lawyer, and mediator based in Northern California. Jack is a conflict theorist and former law professor at the Columbia University Law School and lives in New York. Norman is an author and former Zen abbot who teaches mindfulness practices. This group is developing useful techniques for becoming unstuck when strong emotions threaten to overwhelm the parties' mediation.

Of particular focus was the high conflict divorce, and how it challenges mediators too. The parties' emotions can strike chords within us, and so our goal in undertaking this training is to better connect in an authentic way with our mediation participants and their experiences, and ourselves. We aim to improve our skillfulness in moving parties forward to successful outcomes even when cases become quite bitter, and found the workshop offered useful tools for helping maintain focus and for investigating how feelings can become destructive to the process. The parties' options and choices can be expanded and redirected in positive ways if we can sit and be present with what is distracting us.

Emotions need not be directly addressed in every mediation. Very strong negative feelings are rarely fatal to the endeavor. But if either party's experience includes dynamics that cause blockages to resolving their dispute, if permitted to do so mediators can guide the participants to better recognize what is occurring inside and between them, and so keep the process on track.

If this topic applies to your relationship transition, the three of us might benefit by openly discussing and exploring it early on.

While we wouldn't say that co-mediating your dissolution or custody matter is necessarily superior to engaging a sole mediator, we find that there are benefits to co-mediation that particularly assist some parties. Could a team of two oppositely gendered professionals be more effective than the more traditional practice of using only one?

The reality is that men and women experience the breakup of marriages or non-marital relationships differently, and this assertion is supported by research in the mental health sciences. We suspect this comes as no surprise since many of the couples we meet complain how the other failed to understand differences in emotional views and experiences as the relationship unraveled - indeed, it is always one of the contributing causes. This tension accompanies people into the mediation room and without guidance it continues to block a dialogue that is necessary to sensitively address the needs and concerns of each partner; it is sometimes a source of immense frustration that actively inhibits a solutions based conversation that tends to swing some people into at least mild fits of outrage. Such moments are exactly what fuels the litigation alternative as one or both parties shuts down and gives up, ready to engage in an adversarial arm's race "no matter what it costs" or "to the last penny" that no calm person would want for themselves, much less for their children. The essence of conflict, and the best way to perpetuate it, is to wrap one's fist tightly around a core value seen only from the point of view of the observer and refuse to budge. Gender differences can take control of the dispute and yet be entirely unnoticed.

At DFMS we consider such moments to be opportunities to begin to reframe the discussion. Co-mediation can help each party to understand that the different approaches to conflict that seem so divisive (and truly can be) aren't so much 'personal' as they are a function of conditioning. This is not imply that mediators carry some magic wand of understanding that automatically relieves the tension and discord of views in collision, but where disputants are willing to open up just a little and to admit the possibility that differences in perspective are natural and unconscious  - conditioned and possibly even biological - mediators can facilitate movement that is otherwise unexpected. Whole new possibilities arise.

With one mediator and two parties a sort of triangulated interrelationship can seem to begin to develop. The parties' interactions become one side of that triangle with an energetic anxiety moving back and forth between them as difficult subjects relating to the functional consequences of divorce are aired and considered. Each party may be, quite reasonably, fearful that the familiar communication blocks will re-emerge and limit considerations relating to the needs of each side. Indeed that often does occur for a time. If that anxiety is not redirected by the mediator, each party attempts to align the mediator's views with their own in a bid for reassurance. If unchecked this inevitably leads to a sense of bias for the other party who worries that the mediator is being swayed by the first party, regardless whether bias in fact exists. Since with a single mediator for opposite sex parties one person is of the same sex as the mediator, suspicion or worry over bias can even reach panic proportions. Obviously it takes skill for the mediator to de-escalate such concerns, but perhaps you can see that a dual mediator model allows each party to feel equally supported and reassured.

There are many other benefits of co-mediation. Two mediator professionals assisting a couple always creates a synergy and a collective wisdom of what is actually happening in the room between the parties, and even an inspired approach to problem solving. It serves as a regulator on unconscious biases which might be held by the mediators and so enter the process.

At DFMS we believe that "two heads are better than one." We recognize that this can make the process more expensive than many families can afford, or to cost more than the parties want to spend even when their resources are substantial. We do not mean to imply that a successful mediation requires two facilitators. It is simply another tool to assist you these difficult transitions, of greater or lesser value depending upon the dynamics of your relationship. We are passionate about mediation and honestly love what we do. Co-mediation makes the process even more satisfying for us, but our joy derives entirely upon meeting and working with you towards positive outcomes. For this reason we reduce the fees together significantly below what each of us charges individually.

If you believe that some of the tensions that your relationship dispute includes relate to male/female differences in viewpoints, or if co-mediation is a process that has advantages that resonate for your life, please consider it is a worthy option.

Mediation is a difficult and beautiful dance. People arrive with deeply held and heartfelt concerns, and they will continue to hold these core values no matter what occurs. It is not for the mediator or the other party to try to change these core values, and that wouldn't succeed anyway. Mediators can facilitate cooperative insights that benefit both parties mutually, but they do not impose them. Openness is the parties' joint responsibility and a journey that they must undertake together if the process is to succeed.

People also arrive with settlement expectations, and while these may relate to core values, these are not the same thing and ought not be transposed. Expectations are entirely reasonable, but expectations can make people stuck - and mediation is designed to help couples become "unstuck." Fear of some perceived adverse outcome often underlies these expectations.

While mediation is an opportunity belonging to the participants, and the mediator is present to assist in actualizing dialogues that may lead to conflict resolution, mediators have a responsibility to maintain civility, dignity, and boundaries during the process. Mediation is not "anything goes" or "I should be able to say whatever I feel is important" especially if the other party might feel extremely unsettled by such statements. Themes of blame and shame often underlie such statements, and while these must be recognized they cannot be used as cudgels. It is the mediator's goal to assist equanimity.

I attempt to make this clear in our Orientation Session.  For instance, the  Mediation Agreement I ask you to sign contains the following language:

"The mediator will attempt to resolve any outstanding disputes among the parties as long as both parties make a good-faith effort to reach an agreement to both parties. Parties must be willing and able to participate in the process. The mediation agreement requires compromise, and the parties agree to attempt to be flexible and open to new possibilities for a resolution for their disputes. If the mediator, in his or her professional judgment, concludes that agreement is not possible or that continuation of the mediation process would harm or prejudice any of the participants, the mediation shall withdraw and the mediation conclude."

"Harm or prejudice" includes speech, conduct, behavior, threats of litigation, power-plays, or an insistence that the mediation process only validate one party's core beliefs or agendas where one or both parties are unwilling or unable to permit the other to have a different view. Different views are discussed and even to be encouraged, but that is not the same thing as saying "you must accept my views or else." I find that if people hang in with the process (one that they can always leave later since litigation remains available as a final resort), an unspoken attitude of "or else" may soften and dissipate as more information comes to light. The actual divorce or domestic partnership settlement usually ends of looking and feeling different that what was expected or feared.

Mediation unfolds in real time. It requires skill to manage the mediation exchange between the parties, but artistry or the passion of any mediator towards resolution won't guarantee that mediation between some conflicted spouses will succeed. At DFMS, we believe that our responsibility includes anticipating and reframing what is said in the mediation room. We may sometimes inquire as to what point is intended to be expressed. This is not to be disrespectful, but instead to protect the integrity and safety of the process itself, for each party.

Mediation disputants have to be willing to permit and even help the mediator to help them, understanding that the mediator provides no magic wand and relies upon the parties' own desire for resolution. Without a joint and separate commitment to the goals of mediation, when core values, expectations and fear collide with resolution possibilities the mediation may fail. We cannot give you guarantees. We do offer unconditional commitment to you and your family, nonetheless.

The dialogue between the parties must be one that they are both comfortable in engaging in. This is because mediation is a voluntary process.  Mediation cannot occur or continue without the other's consent. It certainly doesn't force agreement.

In contrast litigation allows either party to say whatever they wish to say, at least in declaration form if not when the process is occurring in open court and Judges are sustaining objections. Mediation requires more, and patience. This is because although in litigation while one side might have a say limited by Evidence Code rules of relevancy, in mediation there are two sides that must be supported at the same instant - equally if the process is to have integrity for both. Otherwise it becomes argument. 

There are times in mediation when one or both parties can't say what they might want to say, and we honor your frustration if this occurs. But mediation is not a platform for either party to launch into their unresolved sense of the relationship difficulties - that discussion is what brings you to us, and it probably hasn't worked thus far. Mediation is not therapy. The mediator's role is not to debate questions or issues with either party, but to try to provide the best environment for positive and respectful dialogue and problem solving, as well as legal expertise about family law issues. Some parties are more appropriately placed with litigating attorneys who can serve as their warriors, or in representing themselves, if that is their desire. 

Adversary litigation is not our wish for you, but sometimes it is the only open course. Mediation is not for every one.

There is a funny bit of nonfiction that has been making its rounds through internet emails. I think it illustrates a scientific basis why mediation may make sense for people who are unwinding their marriages, domestic partnerships, and other intimate relationships. It goes like this:

Do you know why railroad tracks in this country are exactly 4 feet, 8.5 inches apart? After all, this distance seems to be arbitrary number.

It is because that is the way railroad tracks were built in England, and English transplants helped design them in the United States.

But why were they fixed at this distance in England?

Because the tramways that preceded rail lines in England and Europe were designed by the same people who built the trams. They used the same tools and jigs that had previously been used for building horse drawn wagons, which had the same wheel spacing as the trams came to have. 

But why this wheel spacing? Because the roads that were many hundreds of years old were fixed at that spacing, and to use any other size would have destroyed the precious wagon wheels. The roads had become deeply rutted from centuries of use.

And why were the ruts grooved at this distance? Because the roads were first built by the Romans for their legions, and in particular their war chariots. These chariots that formed the initial ruts, which everyone thereafter had to match in order to not destroy their valuable wooden wheels, were spaced at 4 feet, 8.5 inches.

Roman war chariots were made just wide enough to allow the rear ends of two horses to which the chariots were harnessed. Yes, our railroad lines today are spaced exactly to accommodate two horse's asses.

This is a wonderful metaphor. We actually wear tracks into the neural architecture of our brains by how we respond to stimuli, and after awhile it may seem impossible to break free of the ruts. Neuroscience and brain scan imaging is developing evidence that has vast implications for the consequences of how we manage conflict, particularly in relationships that are ending. 

For instance, we now know that after birth the greatest developmental spurts for the brain occur when children or 3-5 and again between 10-13 years of age. Neurons - cells and the synapses that connect them - are being grown in younger adults in exponential leaps. What impacts might a contentious divorce have upon these developing organs? 

By the mid-twenties our brains contain more than four quadrillion neurons and synapses. They fire together in amazingly complex arrays. This ability of our brains to wire has made us successful since we could not have survived as a species if we could not cope with threats or meet complex biological and social needs. But a price we pay is that this hardwiring can be resistant to change, and even maladaptive. A "conditioning" develops that tends to energize and determine our thinking, emotions, attitude and behavior - particularly when we are not paying direct attention to it.  

Neurons that fire together, wire together. Just as with war chariot wheels racing across the same terrain again and again, as these combinations continue to fire in repetitive ways we follow the same ground. This looks like driving a car through previously unbroken fields of wheat.  If the vehicle is driven again and again over the same path, a ditch wears in. Most of us have gotten our wheels caught in a ditch - it becomes difficult to steer our way out. 

Our response patterns to conflict can cause 'furrows' to form in our brains that cause us to interact in ways that can seem impossible to escape. Our reactions to conflict, or our willingness to become locked within it, is in a very real sense a habit of the brain that has developed over time. Many of us have felt quite helpless in the face of some of our reactions, during and after the fact.

Fortunately, the cells and neurons that make up our brains are not static. Even as we continue to age our brains remain highly adaptable. There is growing evidence that changing the way we habitually respond to stress or conflict can cause neurons to begin to rewire differently. This is termed "neuroplasticity". It allows a possibility for different experiences and set of outcomes than those we supposed to be our fate or the only choice. We can engage in behaviors that themselves help to develop neural pathways that offer better and happier alternatives to other more familiar ones - neurobiologists liken this to the "pruning" we all know as amateur gardeners. 

I am not suggesting we take our brains to Gold's Mind Gym and sculpt them like we might our muscles,... yet. Those places don't exist today, but they will within a generation or two. I am making the point that there is a biological basis for understanding how we become conditioned in any number of ways, including how we become rooted in conflicted styles of interacting under the stress of divorce or separation. 

Given the capacity of our brains to rewire, and our amazing abilities to adapt once we develop an awareness of the outlines of any challenge, like overcoming patterned behaviors, I believe that mediation and mediated processes offer family law disputants an environment for safely exploring creative new solutions to old problems. When we become willing to consider how our own reactivity tends to keep us recycling, and that sometimes our response to anxiety producing circumstances are almost unconscious, we are suddenly freed to look deeply at how we might honor and protect our own interests while honoring the views of our former partners. This is a beginning for finding the common ground that always exists, but so often seems hidden, for parties who are uncoupling. It has its practical expression in dividing property, fixing support, supporting independence, and in nurturing and sharing children.

As a family law litigator for 30 years, my experience has been that when people are assisted in developing options that are more visionary and mutual than what Courts impose, the process costs them less, they are more satisfied, they reach agreements that are lasting, and that they can positively influence those around them and especially those who depend upon them for emotional and financial support. And, they feel better and begin to view their lives more positively. 

Which is a good way to support a useful rewiring of our brains. 

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.