Mediation may not be a laughing matter, but it shares some similarities with improv comedy. This comparison came to me when I read a recent New York Times article commemorating the 50th anniversary of the renowned Chicago improv comedy troupe, Second City. Around the same time, a friend called to tell me about performing improv at a workshop. She described the experience as a lesson in self-discovery. “The whole point of the exercise,“ she explained, “was for the group to practice the rules of improv to see which ones were hardest to follow. Each one of us butted heads against at least one of the rules. It became a mini-therapy session. Our rule-breaking during our performances pointed us to our underlying issues.” Say more! Tell me everything. I love Rorschach type tests, and this sounded like a good one.
Teenagers have an especially difficult time. Peer pressure and self-consciousness can silence the strongest voices. For foster care children, the stress and turmoil of being displaced from home can compound the teenage drift toward silence. But there are programs working to combat the silence. Read more
In Arghavan Gerami’s Quarterly article, “Bridging the Theory and Practice Gap: Mediator Power in Practice,” the concept of mediator neutrality is exploded as an impossible theoretical construct. The author asserts that mediators exercise a significant amount of authority and power in their roles constructing and transforming conflicts. In mediators' efforts to bring the hidden interests of the parties to the surface, Gerami argues, they attend to the content of the agreement so that all interests are represented. Whether refocusing the issues, reframing the client’s statements, or reconstructing the contours of the conflict, mediators shape and exert control over the conversation. This mediator power, unchecked and unexamined, can derail the mediator's ethical responsibility to remain neutral.
According to Gerami, most mediators fall into two camps. In the first group are those who are settlement driven, often offering suggestions, reframing issues or putting forth reality checks, with an eye on helping the parties reach a settlement. In the second group are mediators who primarily focus on enhancing communication and constructive dialogue to encourage the parties to bring forth their needs, concerns and interests. Whatever camp a mediator falls into, he or she is an “active and influential agent of change” - a participant in a three way dialogue. Mediators from both camps employ techniques to break down the whole into smaller more manageable pieces, while “repolarizing” and making more attractive the pieces to bring about resolution. Accordingly, “if the mediator truly succeeds in not exercising any power, then the process is not all that much different from straight negotiation, with an additional person present but not adding anything more.”
As it turns out, our brown bag talks are Gerami’s solution to dealing with the challenges of mediator neutrality and power. Collaborative professional meetings give mediators a chance to share their experiences in “continuous, self-critical, non-defensive and open dialogues.” Our own brown bag meeting never delivered a final verdict on which term, multi-partial or neutral, we should use. Calling ourselves multi-partial is a subtle indication to our clients that we want both sides to leave the mediation feeling satisfied with the outcome. On the other hand, sitting in the client’s chair, it might feel more important to hear that the mediator neither endorses nor opposes a point of view. Calling ourselves neutral may be the only way to convey this. The takeaway is that ethical mediators, in our professional discussions and in our individual practices, must stay alert to neutrality and power pitfalls, choosing to acknowledge our power while neutrally “steering the wheel” to bring the parties toward their desired outcome.
Arguments are settled everyday, in formal and informal settings, under official and unofficial circumstances. Teachers break up student fights, neighbors step in to solve neighborhood disputes, parents sit their kids down to work out grievances while therapists counsel unhappy couples. Which of these disputes are refereed and which are mediated, and what’s the difference? Perhaps it helps to look at the role of the person in the middle.
A referee is someone to whom a problem is referred, hence the name. He or she has the task of rendering a settlement or a decision. Essentially, a referee is a judge…someone to whom both parties give the final say. The referee is impartial, otherwise the contest is a farce. The problem, of course, is that every referee shows up to the task with a bias - a blind spot, a dulled sense, a prior belief, an expectation, a thought that makes him or her less than neutral. This is human nature.
A transformative mediator, by contrast, has a lighter burden than the referee. He or she may sit in the middle, but the outcome is in the hands of the disputing parties. Transformative mediators have the luxury of claiming multi-partiality, as long as we empower both sides equally to settle their dispute in whatever way they see fit. We can want both sides to do well and to feel satisfied with the outcome. We pay attention to the process that allows the parties to work through their dispute, without having to weigh the merits of the arguments that make up the content of the dispute.
This attention to a mediator or referee’s role is germane tonight as Barack Obama hosts Henry Louis Gates Jr. and Sgt. James Crowley at the White House. Is President Obama a referee or mediator? Cynics might say neither; he’s just doing damage control to deflate the hype over Gatesgate with a “Beer Summit.” Yet the moniker “The Mediator President” was attached to Obama well before this incident. His people skills, verbal and listening skills, ability to think outside of the box, to process complex lines of reasoning on the spot, and to remain calm under pressure, all make him an excellent mediator. Tonight sitting at the table with his friend and the policeman, he is more mediator than referee.
Let Obama’s generous offer to sit in the middle of this conflict be an example to the rest of us to seize opportunities to mediate conflict. Whenever we can encourage friends or colleagues to sit and talk, we create opportunities for better understanding. We don’t have to be judge or referee. Often guiding the process is all the parties involved need to begin the work to understand one another better. Though Obama wouldn’t comment on the confidential conversation that took place between Crowley and Gates tonight at the White House, he offered a takeaway that speaks to why mediation is such a powerful tool in resolving conflict: "I have always believed that what brings us together is stronger than what pulls us apart.”
In the summer of 1974, before divorce mediation was a common practice in the state of California, my parents dissolved their 22 year marriage. As a mediator I have often fantasized about how a mediation session might have delivered a different outcome for my family. If my mother had experienced self-determination and empowerment by sitting across from my father at a mediation table, early in the divorce process, she could have set our family’s path on a different course. Personal stories always bring the text to life...but first the text:
Standard I. A family mediator shall recognize that mediation is based on the principle of self-determination by the participants. Self-determination is the fundamental principle of family mediation. The mediation process relies upon the ability of participants to make their own voluntary and informed decisions. ("Model Standards of Conduct for Mediators" a joint statement by the American Arbitration Association, American Bar Association, and the Association for Conflict Resolution (2005)).
Self-determination is the hallmark of transformative mediation. It is the single determining factor in assessing whether or not the parties mediating have experienced empowerment...the holy grail, so to speak, of transformative mediation. When divorcing parties meet across the mediation table their sense of self-determination translates to feelings of increased self-esteem, improved control over decision making, an increased sense of their own power and a reduction of painful emotions. (Sara Cobb, Empowermet & Mediation: A Narrative Perspective).
Unfortunately, for our family there was no mediation. During my parent’s divorce, my mother spoke only through her lawyer, refused to ask for what she wanted, and settled into a place of hard anger toward my father that lasted the rest of her life. My mother was typical of her generation. She put all of her (six) eggs in one marriage basket. When her marriage ended, she faced difficult hurdles. As a result of our parents’ poor communication, the family suffered every time we were called together for family weddings, funerals or other occasions of importance. Our parents remained in camps, while we six children did the exhausting divorce dance...keeping them physically apart, and dividing ourselves as protectors of each camp.
How would mediation have helped my mother? What if she had braved the stress of sitting across a mediation table, had asked for what she wanted, given voice to her feelings, taken control of her divorce, and her future? I like to think that with two empowered parents, our family would have been transformed. My mother never spoke to my father, in a meaningful way, after they divorced. My wish is that instead of anger and silence, she had experienced self-determination during the divorce process, establishing a healthy pattern of interaction and communication early on. When she died a year ago, the evening of a large family wedding, my five siblings and I had spent the afternoon in two separate camps; each parent surrounded by half of their children, carefully spaced three round tables apart.
The takeaway is that family mediation provides an opportunity, early in the divorce process, to establish patterns of communication that will have an impact on a family for decades to come. Getting it started by speaking across a table, finding empowerment through self-determination, is a good way forward.
June 28, 2009 - Boston Globe: “An elderly man was seriously injured after being struck by an 86-year-old woman…The accident comes just two weeks after an 89-year-old woman allegedly struck and fatally injured a 4-year-old girl…On June 2, a 93-year-old man drove his car into the entrance of a Wal-Mart, injuring six people…The next day, seven people were injured after a car driven by a 73-year-old woman jumped a curb and ran into a crowd.”
We’ve all seen these kinds of tragic headlines. Most of us know someone who, if not involved this time, could be the one at fault next time. We fail to step in because it is uncomfortable to have the talk.
Issues related to our aging American population are turning elder care into a pressing family matter. The good news is that a new path for dealing with these issues has emerged. Adult Family Mediation, based on family circle conferencing principles, provides families with a forum to talk about aging-related issues. When an elder’s faculties become diminished, the ability to drive, manage medications, attend to finances and live alone may be affected. Rather than let the situation worsen into a crisis with few choices, families are using mediation to proactively gather in a room and talk about what comes next.
Adult family mediations are a time to share information, discover options, and air feelings. When a neutral third party is present, the family dynamic shifts. Family members, who might reach an impasse in a home setting, reverting to old patterns of interaction and rivalries, bring their “better angels” to the mediation table. At the conclusion of the session, which may last an hour or two, the mediator will draw up a plan of action; a road map to guide medical staff and care providers.
Rikk Larsen, an elder mediator, describes in an NPR interview his own experience working with a family in crisis. A group of brothers and sisters, concerned about their father’s refusal to share financial information, were ready to go to court to have him declared mentally incompetent. They wanted to take over his finances themselves. Instead, a mediation led the family to a compromise. They agreed that the father’s accountant would send an assistant every two weeks to help their father pay his bills. Larsen also describes a mediation where the intense emotional pleas of the children for their father to hand over his car keys finally led the man to give them up…but not to his children. He handed them to the mediator instead.
As Bette Davis said, “Old age is no place for sissies.” Adult Family Mediation is meeting a growing need in our country for thoughtful attention to the problems of elders. The takeaway is that mediation helps elders and their families face challenging health, emotional and financial issues. Finding solutions to problems in a compassionate and dignified way gives elders peace of mind and a sense of control at a time when both are in short supply.
Imagine being 14 years old and getting into trouble for walloping the school bully. Add in some layers. You started the fight on school grounds. There were witnesses. The police were called. The other kid’s parents have filed an assault charge. It gets worse. The next day after you return home from school your mom meets you at the door in tears. A representative from the local housing authority has called to say that your behavior is grounds for eviction. Your younger siblings stare at you open eyed. They’re about to be displaced, too. When you push past them to go to your room, you are flooded with feelings of shame, humiliation and anger.
This scenario may sound overly dramatic, but it’s a real one, repeated too often in Iowa City. In response, our local housing authority has implemented a Family Group Conferencing mediation program to put time and space between an offending minor’s action and an eviction.
As background, the Iowa City Housing Authority spends over 5 million dollars annually in a progressive program that gives rent money to qualifying Iowa City families so that they can live in the same neighborhoods as their doctors, teachers, city council representatives and convenience store workers. In essence, the bulk of Iowa City’s low income housing is invisible. The ICHA pays owners of rental properties a portion of a family’s rent, and in exchange, it pledges to the community to keep neighborhoods safe by expelling tenants who break the law. This strict policy extends to the minor children of families who live in low income housing. While eviction for a teenage child’s mistake seems heavy handed, the community’s trust and stake in the program must be honored in order for the program to exist. Consequently, when a minor gets in trouble, the intervention is swift and serious.
One of the pieces of this intervention is a facilitated mediation that asks the offender and family members, along with representatives from the housing authority and law enforcement, and other key supporters of the offender – teachers, counselors, friends or extended family – to come together and sit in a circle and talk. Family group conferences are highly structured, in part to ensure fair and equal participation. Every attendee has a turn to speak. A question is posed by the mediator, perhaps one focusing on the impact of the violent or illegal behavior, or one asking about possible changes that could be made to protect against future incidents, and then one by one each person in the circle speaks. This is an opportunity for the offender to be heard, for the circumstances behind the violent act to be contextualized, and for the group to share in the solutions and decisions that will affect the family.
There are no guarantees that the conference will enable the offender and the family to remain in their home. Still, the family group conference gives the family a chance to state their case, and more than that, allows the offender to hear from other caring adults. The takeaway is that family group conferencing provides families an opportunity to share in the decision making process. There is great power in people gathering in a circle, all listening to the one speaking.
At the end of each small claims mediation, but before our handshake across the table, I give an evaluation form to each participant to fill out. While they’re doing this, I write up the mediation agreement or dismissal. On this day, however, I sat doing nothing. There had been no agreement. Later, reviewing the evaluations, I was dismayed that one of the participants gave our afternoon a low score. He wouldn’t recommend mediation to a friend, according to the box he checked, and in the open comments section he scrawled, “Too much wasted time with no result.” The other participant gave the session high marks and wrote a favorable comment. Why did these two participants have such different experiences? Here’s the rest of the story.
I begin all small claims mediations the same way. After we’ve settled into our seats at the table and made introductions, I talk for less than a minute about the mediation process. I always stress confidentiality, informality, and encourage the participants to speak freely to one another. I also invite them to make phone calls or request a visit with the magistrate if they need more information. I want them to feel empowered by the information that they share at the table or get from an outside source. At this point I usually shift backward in my chair to signal that the real talk can now begin... I am getting out of their way. Despite this gesture, there is usually an initial period when the parties talk to me rather than one another, as if I were acting as a stand-in judge.
At this mediation the plaintiff, a business owner, had filed a claim to recover losses from a bad deal. The defendant was represented by an attorney. The specifics of the case are confidential, but both participants were polite and attentive; both were thoughtful listeners and questioners.
After almost an hour of information sharing between the parties, the attorney began to deliver a formal summary of his case. Didactic points were layered for the plaintiff like an algebra problem: “If this then this, which can only mean this.” There was table thumping and a slightly agitated tone. Once the attorney shifted to this tactic, I interrupted. I refocused the participants on their options: a compromise, a dismissal or a trial before the judge. The mediation ended quickly at this point and we returned to court.
Can you guess which participant gave the session a low score? I must confess that I wouldn’t have guessed either one. I thought the afternoon was a success. Both shared information and evidence, some of which they’d not known or seen prior to sitting down together, and the conversation had been self-directed and focused. The attorney, however, rated the mediation a waste of time.
Most likely the attorney didn’t value the time together because it failed to deliver the outcome he wanted. Perhaps, too, he felt his client would resent the extra hour of billed time. But, here’s the takeaway: When mediations don’t lead to an agreement, the time together can still be useful for sorting out misunderstandings, or, in this case, getting clear on the facts as seen from the other side’s perspective. And, though there was no settlement or dismissal, surely the hour together helped the participants improve their presentations before the judge.
Here’s a statistic to chew on: There are more mediators in China, per person, than there are laywers, per person, in the United States. This contrast can be explained by different social, philosophical and historical influences in the two countries. A brief overview provides some interesting implications for the future of mediation and lawyering in both China and the U.S.
In China, mediation is a way of life. Law suits are regarded as a last resort; a vulgar embarrassment to the honor of the individual, the family and the community. Chinese mediation, called “tiaojie” is performed by government officials, but only if the first round of mediation within a family or community fails. Mediation is rooted in the tradition and values of Chinese culture, and can be traced back 4,000 years through folklore. According to one story, a king ruling over a land of disgruntled countrymen must devise a plan to restore peace. He observes that those in the mountains feud over borders, those by the river bicker about home ownership, and everywhere, everyone complains about the inferior pottery sold at market. His solution is to leave his palace to live among the people. By living on the land, fishing in the river and learning to make excellent pottery, he models good citizenship. Within one year, so goes the story, residents offer their land to one another, concede their houses to one another, and make and sell superior pottery. Harmony is restored through the king’s intervention and wise leadership.
In Chinese culture, rites of behavior, modeled by this ancient king, set the moral compass. Confucianism, another guiding influence on Chinese values, teaches that when people behave according to taught patterns, social expectations guide them to live the “right way.” A fear of shame, of losing face, keeps them in line. Consequently, the elders in a family or community, those who set the example, mediate conflicts. In a culture that places value on respecting authority, and entrusts authority to oversee others with benevolence and generosity, the harmony that comes when citizens are content, is the culture’s highest value.
In western countries, our moral compass is set by a different standard; one based on justice, impartiality, and fairness. Our judicial system punishes people after they break the law. We place value on individualism and autonomy, which we cherish above the harmony of the whole. Our cultural tradition values independence and opportunity, and while our elders have had their chance, with stories to prove it, each of us has the right, even the obligation, to do it our own way. In fact, this is the highest value of our culture…the freedom to make our own decisions about the way we live.
And yet, there’s change in the air. In the U.S., as prisons and courts overload, mediation as a means of alternative dispute resolution is on the rise. In China, as the internet and media disrupt traditional culture, the govenrnment is responding by further developing its legal system. Consequently, lawyering is on the rise. As the world flattens and we trade customs across cultures, our common desire for peace connects us. Here’s the takeaway: Working to get along with one another is as old as history. Ancient teachings from all cultures share similar messages about conflict and peace. Case in point, in approximately 500 B.C., Confucius said: “What you do not wish for yourself, do not do to others.”
For more information on Mediation in China
A few weeks ago I joined over 100 lawyers and mediators from Eastern Iowa for a full day seminar to learn about the new State of Iowa Child Support Guidelines that will go into effect July 1, 2009. Guest speakers at the conference included Judge Anuradha Vaitheswaran, Co-Chair of the Committee to Review Child Support Guidelines, who provided a brief overview of Iowa’s child support history and explained why the new changes are necessary.
Judge Vaitheswaran believes that the new Child Support Guidelines will address some inequities in the old model. As background, in the late 1980’s, the federal government ruled that states must standardize their support guidelines, and review these standards every four years. Iowa’s guidelines are based on the premise that both parents pay an amount "reasonable and necessary for supporting a child." Until now, Iowa’s every-four-year revisions have been based on consumer price index (CPI) cost of living adjustments.
Economic changes and rising health care costs, however, have rendered the old model inadequate. According to Judge Vaitheswaran, the July 1 guidelines will ease the burden on low-income parents who do not have custody of their child or children, while also more equitably determining how medical insurance costs factor into parental support payments. Additionally, the new guidelines will cut down on the “notch effect” inherent in the bracketed income models used to determine support. Previously, the brackets used broader increments for reporting monthly earnings. This meant, for example, that a parent deducting union dues from her income (which should lower a support payment) could in some cases increase her child support responsibility, while at the other end of the spectrum, a parent's higher income might land that parent in a bracket where they were paying less than their income afforded. The new formula uses small divisions to avoid these types of inequity.
Additionally, the event, sponsored by the non-profit Mediation Services of Eastern Iowa (MSEI), featured a panel of local judges who addressed the impact of mediation on family law cases in their courts. Judges Thomas, Grady and Turner underscored the value of mediation in easing the court's burden. They suggested introducing mediation into the divorce process earlier, as well as multiple sessions to help the disputing parties avoid a court trial.
Several attorneys attending the conference stressed the importance of explaining to divorcing parents the differences between joint custody (sharing decision making regarding a child’s welfare) and joint physical care (sharing care of the child between households). Parents should understand that joint legal custody does not require joint physical care. Understanding this distinction helps parents to know their choices and make informed decisions.
Here’s the takeaway: As the recession impacts households, including families’ ability to sell their homes, qualify for credit, and in some cases, afford the costs of divorce, couples are feeling unprecedented economic strain. New Iowa Child Support Guidelines may affect current child support payments by as much as 10%, which may send some couples back to court for child support modifications, while newly divorcing couples may find the charts more equitable for all involved.
For an overview of Iowa's Child Support Guidelines
For information about MSEI
It is a joke among mediators that we are mistaken for meditators. Only an extra “t” stands between the two words. But, beyond this superficial similarity, the principles of mindfulness meditation and mediation share more in common than similar spelling. Both disciplines seek insight and awareness, both depend on attentiveness.
Mindfulness is the western world’s version of eastern religions’ awareness. In some branches of Buddhism, including Taoism and experiential Prajna, or meditation, awareness is known as zazen. Zazen, “an awakening,” is achieved through the practice of zen. Being awake to each moment allows us to be fully present and attentive to ourselves and those around us. According to mindfulness teachings, this calm awareness opens our hearts and frees us of judgments so that we can find kinship with all beings. Through mindfulness we can find peace within, create harmony in our communities and balance in our environment. The rewards for mindfulness are compassion, openness, and clarity - the three hallmarks of transformative mediation.
When mediators meet with disputing parties, we are privileged to be let into our clients’ lives when they may be most vulnerable. As mediators we must be alert to every nuance of their interaction so that by connecting with them, we can help them to make connections that will move them forward. Paying close attention to words, body language, the storyline, the slightest changes in facial expressions, allows us to read all of the signals in the room, to collect all of the information available to help the mediation participants more fully express themselves. Our mindful attention to what is going on in the room gives us access to deeper insight so that we can help those involved identify all of their choices.
Mindfulness must be nurtured daily. It is not an innate trait that we are born with. To be mindful during a prolonged and intense conversation takes focus and mental preparation. A mediator friend of mine pauses deliberately to center himself before leaving his office to greet mediation clients in the lobby. He explains that he uses this moment to remind himself of why he is a mediator. On the credenza in his office he keeps another reminder, a framed copy of the Prayer of St. Francis. It begins, “Lord, make me an instrument of your peace.”
To be mindful mediators, each of us must find our own place of centeredness before entering the mediation room. For some of us it will be a mindfulness practice through yoga or meditation, prayer, or simple breath work. Whatever it is, our intentional practices connect us to ourselves so that we can better connect with others. The takeaway is that mindfulness awakens our hearts and minds to the myriad opportunities for peace that each moment in a mediation may offer.
To read more about Mindfulness Meditation
To read the Prayer of St. Francis
The principles of mediation are practiced daily all around us: in classrooms and boardrooms, in homes and on streets. People find themselves in conflict and rather than “turn tail and beat a hasty retreat” or, worse, “slug it out, mano-a-mano” they go to that uncomfortable place and speak the truth to one another. This thought was brought home to me last weekend as I found myself in the middle of a family drama/conflict, and also, as I listened to the words of Barack Obama in his address to Notre Dame’s graduating class of 2009. My own story first.
My beloved great aunt turned 90 this month, and to commemorate the event she self-published her memoir. This was no schlock thrown together manuscript. She labored for 3 years and wrote a powerful story beneath a beautiful, professionally designed cover. No controversy here. The problem arose when she approached my son and his fiancée, in my presence, and, by way of explaining her choice to inscribe the book to my son alone, said to his fiancée, “Darling, I didn’t put your name in the book because you’re not married yet, and you never know how these things will go.” If she’d stopped there it might have been okay. She continued to explain that she inscribed a book to another son AND his wife, because the wife had been in the family so long and they shared a history together. I was certain I saw a flicker of pain across my soon to be daughter-in law’s face, but she recovered quickly and said, “Of course, it’s fine that my name isn’t in the book.”
What to do. The conflict grew in my heart and mind until it had taken on a life of its own. I needed to say something. Three days later over our weekly lunch, I broached the subject. I practiced what I’d say ahead of time. I chose my words carefully so that they wouldn’t polarize. That moment as I started the process – the difficult talk – time seemed to slow down. The noise of the restaurant disappeared. We were in the zone…that place where real connection happens. My aunt was both surprised and appalled that her words had hurt. She teared up and explained her intentions and sought my advice about how to remedy the situation. I left that lunch grateful for our conversation and, surprisingly, for the conflict that had led me to it, for confronting the conflict had connected me to my aunt in a profound way. My reward for talking about something uncomfortable was that I experienced in a new way my aunt’s deep core of kindness. Only days before I had been furious with her!
This last weekend President Obama also demonstrated the power of going to that uncomfortable place to discuss hard things. Delivering the Notre Dame commencement address amidst controversy for his pro-choice stance on abortion, President Obama spoke to his critics in the audience. His words were conciliatory and visionary. He described a defining moment in his Illinois Senate campaign when a doctor wrote to him and said he couldn’t vote for a candidate who used inflammatory words in the abortion debate. On his campaign website Obama had pledged to "fight right wing idealogues who want to take away a woman’s right to choose.” Obama referenced this story to underscore his mistake in framing his position with polarizing words. The doctor had written: “I do not ask that you oppose abortion, only that you speak about this issue in fair-minded words." Obama changed the wording on his website and vowed to use fair-minded words from that day forward.
If you read President Obama’s speech in its entirety (the link is posted below) you will be struck by his willingness to go to that uncomfortable place to talk about difficult things, “without fudging.” His speech highlights the principles of mediation that common folk put into practice everyday - communicating in order to further understanding, listening in order to consider different viewpoints, finding points of agreement to seek common ground, all for the purpose of finding peaceful ways to settle conflict. Here’s the takeaway: It is not always possible to walk away from a conflict-based conversation feeling (as I did with my aunt) a deeper bond from working through our misunderstandings. But we can leave these conversations better able to understand one another, and when we're lucky, grateful to have made a real connection, both palpable and profound.
For President Obama's Notre Dame Commencement Address
In the 2009 Spring issue of the ACR Conflict Resolution Quarterly, Robert Silver and Deborah Coe Silver write about a new program in the 20th Judicial Circuit of the State of Florida called “The Sieve Model.*” According to the article, in the state of Florida where the divorce rate is the tenth highest in the nation at 5.3 divorces per 1,000 couples (Iowa averages 3.1 divorces per 1,000**), the Hon. Hugh E. Starnes asked family law and mental health professionals to work together to develop an alternative to custody court battles.
The program works like this: When Florida couples with children begin the divorce process, their needs are “sifted through a sieve,” or filtered through a series of least to most invasive processes with the hope that disputing parents will devise their own parenting agreement once they understand the costs and emotional damage associated with going to court. The Sieve Process takes the disputing couple through a series of steps, including surveys, parent education classes, mental health coaching, mediation, reality training, etc., with each step incrementally increasing both the tactics and individualized attention directed at the disputing parties. The parents may opt out of the program at any point by devising their own parenting plan.
The last stages in the process are particularly costly and emotionally trying for all involved, especially the children. For example, the third to the last step, a “focused parenting evaluation” takes up to two months, costs $1,500, and involves interviews with the children as well as other assessments to evaluate a particular issue that the couple cites as blocking an agreement. These are often cases where substance abuse is a safety concern. The final step in the process takes the couple to court for a “comprehensive custody evaluation,” a 9 month ordeal that costs $5,000 . Experts believe this phase may cause irreparable damage to the children placed in the middle of warring parents. The Sieve program exists to protect the families from this last, difficult measure when possible.
The Silvers draw several conclusions based on the early success of the Sieve Model. They find that substance abuse issues in a divorce often cause protracted conflict. One of the benefits of screening in the first stages of the process is that early substance abuse detection leads to a better outcome for the family. Similarly, when even one parent is receptive to expert guidance, there is a greater chance that the entire family will have reduced conflict. Here’s the takeaway, the success of the Sieve program demonstrates that helpful and supportive professional intervention can lead couples toward finding their own solutions. Family mediation is an important step in the Sieve Model. Rather than expend energy blaming and fighting, divorcing couples redirect their energy toward working together constructively in the best interests of their children.
*The Sieve Model: An Innovative Process for Identifying Alternatives to Custody Evaluations (p 333-348) by Robert B. Silver and Deborah Coe Silver, Conflict Resolution Quarterly, Spring 2009. This article is available to ACR registered members who may log in to read it, or for purchase. click here.
**For further information about the national divorce rate click here
When I ran into a friend at a party recently, we got onto one of my favorite topics, mediation. I was discouraged, however, when this friend launched into a jeremiad on the evils of non-attorney mediators. (Okay, the live band was loud and maybe he raised his voice to compete with them.) As a non-attorney mediator, I am sensitive to the arguments against us. Let me paraphrase how they go:
Non-attorney mediators are fine for some types of mediation, (neighbor to neighbor, small claims, teacher student problems, etc.) but not for family divorce mediation. Divorce and/or custody mediations must be guided by a lawyer so that the disputing parties are not allowed to bring faulty thinking to the table: “he owes me this, she owes me that” – when in fact no judge would ever grant this or that. Without an attorney, says the argument, this type of mediation might result in an agreement that no court would honor.
I have to admit, the argument makes sense…except that it is based on the erroneous premise that non-attorney mediators don’t know and aren’t capable of understanding the statutes that govern Iowa divorce and custody rulings. Good mediators stay current on Iowa law, not to give advice but to guide conversations toward issues that can be mediated, and away from issues that the court will decide.
It is helpful to compare successful mediation with walking a labyrinth (which is not to be confused with a maze, one of those hedged walks with trick turns and dead ends!). Labyrinths have a single start and end point, and though they’re filled with many turns (giving you the impression that you’re going back and forth) the labyrinth path will take you in a single direction, forward and out again.
When you’re walking the labyrinth you move at your own pace, you decide if you’re reflecting on a particular question or walking the path to see what you discover. One of my jobs as mediator is to keep you from getting stuck on points that don’t take you forward. These might be issues like minimum child support payments, which the court determines by a calculation. Quarreling over child support may be a waste of time, whereas comparing insurance benefits, discussing extracurricular activities and determining childcare options are excellent topics for mediation. There are other topics that Iowa law influences, including grandparent visitation rights, college tuition subsidies for dependent children, or equitable distribution of assets, yet fine points in all of these areas are appropriate for mediation. Parties consult their attorneys prior to mediation to know what issues the law will and won’t decide for them, and to decide ahead of time what they need to work out during mediation.
Here’s the takeaway: A divorce mediation should be a labyrinth and not a maze; the stepping stones of the path – Iowa’s marriage and domestic relations codes - keep the conversation on track. Mediators are trained to assist you in the conversation that attorneys prepare you to have. You are the experts in solving the issues unique to your situation. Since settling issues in court is both costly and emotionally painful, mediation may be your short cut to moving forward.
For more information on Iowa Dissolution of Marriage and Domestic Relations Code: click here
To roughly estimate State of Iowa Child Support Payments: click here
Please consult your family attorney for more information about Iowa law, appropriate topics for mediation, and all other questions regarding the specifics of your situation.
I’m one of those people who collects aphorisms the way others collect shoes…well, okay, maybe I collect shoes too. Like shoes, I need an aphorism for every occasion. One of my favorite quotations comes from Art of the Inner Meal, a book about the zen of eating and mindful living: “Life is short. Move slowly.” What does this mean, and how does it tie into mediation? Wait for it.
That’s another little phrase on the same subject. This buzz lingo of hipsters, “wait for it” speaks to our popular culture’s hunger for instant gratification. But aside from its use in jokes or story telling, the phrase offers sound advice. Wait for it. Don’t rush ahead. When two parties sit down to mediate, I join them with the intention of helping them to understand one another. I want their time at the mediation table to be productive, but they decide what that means. As our time together unfolds, there is usually a point where slowing down the conversation speeds up understanding.
Imagine a mediation between two disputing neighbors. Their issues revolve around a dog that leaves gifts, chews tree trunks, chases children and steals newspapers. The dog owner is listing all of the ways – in equal measure - that his neighbor disturbs his peace; lawn mowing before 8 am, teenage children whose car tires peel out of the driveway, trumpet practice with an open window, and the list goes on. The dog owner misses a quiet remark from his neighbor about splitting the cost of a fence to keep the dog confined. As mediator, I will step in to say something like, “If you don’t mind, I want to take just a moment to recap what I’ve heard each of you say…” Essentially, I slow things down. When both sides listen to a mediator re-state their positions, they’ll have another chance to consider what has been said. As a result, they may head off in another direction, revisit a point for clarification, or refine the conversation based on something they’ve rethought or possibly heard for the first time.
Not being able to hear the other party happens a lot in a conflict-based conversation. In telling our side of the story we become immersed in details, time-lines, layers of significance and our feelings about all of it. The communication process brings these things close to the surface where they pool and flood our consciousness. It is hard to hear outside of ourselves. That’s when it is helpful for the mediator sitting on the side to step in and slow the process. Hearing, processing, understanding, takes time.
So, back to my favorite aphorism about slowing down. I suppose I carry the thought in my consciousness to remind myself that life happens in a blur. Our best defense is to pay close attention - to move slowly - to counterbalance life’s brevity. Actually, moving slowly improves many areas of our lives: exercise (a slow crunch is harder and more productive than a fast one), eating (have you ever forgotten to taste what you’ve swallowed?), and, especially, talking to one another (most racing minds cannot hear and think about the next talking point at the same time). The takeaway is that if we want to resolve conflict, we may have to slow the conversation. On the path toward making a situation whole, it takes time to speak, hear and process the pieces...”life is short, move slowly.”
Do you remember the first time you saw an emoticon – probably well before you knew it was called an emoticon? I don’t know about you, but for me, seeing my first ;-) evoked feelings of relief (finally, a way to express that piece that had been inexpressible), mixed with delight (how clever) and wonder (what took so long for someone to think of this?). Well, what the emoticon did for the written word, mediation has done for the small claims court. Before mediation, plaintiffs and defendants stood before a judge and told their story, but the subtext of the story…how they felt about what went wrong, how the problem affected them…went unreported. For every small claim dollar amount owed or not owed, there was another layer to the monetary transaction – the feelings behind the intentions and expectations of the people involved in the dispute - that didn’t get addressed. In short, without mediation, there was no emoticon to go with the dollar sign.
Of course, the emoticon doesn’t make an appearance at every mediated small claims case. Sometimes the parties involved choose to stay focused on the dollar signs - but at what cost? A perfect case in point was a recent small claims case between family members. One family member had filed a claim against another, and nothing said at the mediation table could persuade the filer of the claim, the plaintiff, to settle for less than the amount of the claim. The family members left the mediation without an agreement, more upset with one another, it seemed, than when they came in. I stayed to watch the case tried, curious to see if the emotional dimension of this unusual case would be addressed in court. It was not. The law that would decide the case was not sensitive to the family relationship at the heart of the dispute. I wondered if the judge’s decision further fractured the family. I couldn’t help but question how differently things might have turned out if the family had used the mediation table to try to better understand one another.
But there are many more situations where relationships are preserved as a result of the mediation process. I remember one case when the two parties entered the mediation room and sat side by side. If the table had been small and round this might not have been significant. Our courthouse mediation space, however, is a jury room, with a long, imposing conference table, so their choice to sit together was a measure of their high regard for one another. It turned out that though they disagreed about how much money one owed the other, they didn’t disagree that money was owed. Their stories were involved; they needed a piece of paper to map out events with x’s and arrows, but by the end of the hour they had a plan and left with their business relationship intact. The process was as much about explaining their different perspectives as it was about arriving at a settlement.
I don’t want to characterize all small claims mediations as either successful or failed “love fests.” In fact, in a future blog, I’ll talk about some of the cases where the transformative mediation model is problematic in small claims court. But, those cases don’t override the success of the many that resolve to the participants’ mutual benefit. The takeaway is that while dollars bring people to court, it is the emotional component of the people’s stories that often keeps them talking at the table. When it works, the mediation process lets the emotional content factor into the bottom line, which is rarely just about dollars.
Our conversation got me thinking about the economics of a $1,000 an hour mediation practice. My imaginary farmers from my last blog entry couldn’t afford those prices! One of the selling points of mediation is that it’s a less costly route than litigation, so, there must be an explanation. And, there is. But we’ll save that point for a quiz at the end!
There are three types of mediation that are worthy of a brief explanation in order to understand how the type of mediation practiced by the high powered L.A. attorney relates to the transformative style practiced by most family mediators. These types are the directive, facilitative and transformative (or elicitive) models, pictured in the diagrams above.
In the directive model (middle diagram) the parties “caucus” in separate spaces (frequently with an attorney at their side) while the mediator moves back and forth between them. This approach keeps the parties apart, often because the situation is volatile or contentious. Frequently the mediator is an attorney or retired judge with subject matter expertise, because her job is to come up with a settlement based in part on what she believes is fair. This mediation model is usually “open” (see the previous blog for an explanation of this term) since the mediator will report her recommendation to the judge based on what is said during mediation. The big chair in the diagram represents the mediator, who shoulders a lot of responsibility for the outcome.
Notice in the facilitative diagram (above left) that the parties are in the same room. The mediator is at the head of the table because the parties are talking to each other through the mediator, who facilitates the conversation. In this model the mediator guides the parties through a discussion of the conflict and moves them toward agreement. The mediator’s chair in the diagram is bigger than the participants', for she will play a large role helping the parties overcome their conflict in order to reach a resolution. In this model the conversation is either open or closed, depending on what the parties agree to ahead of time.
Finally, in the transformative (or elicitive) model (above right) the table is round. The mediator sits beside the participants, on equal footing. In this model the mediator isn’t guiding the process toward an end, rather the process itself is the end. The people in conflict are the experts on how to solve their problem. They have the ability to transform their interaction by talking, listening and understanding one another. When this happens, resolution follows. This model is almost always closed. The transparent process empowers the participants to change the way they see and respond to the conflict . What they learn in the mediation process, doing the work themselves, is of value to them when or if future problems come up.
How do these models translate to real life? Almost every mediated situation draws on elements of each style, though most mediators have a preference for one over the other. Transformative mediation is gaining momentum as the most widely used style because of the control it gives to clients to shape both the process and results. The Johnson County Small Claims Court uses this style in its free mediation service. (More on that in another blog.)
So now it’s quiz time. What mediation model does the retired L.A. lawyer friend of a friend use? If you said the directive, you win. This model might make particular sense in a high stakes celebrity divorce with millions to be divided. The clients mediate to keep their affairs private. The mediator acting as a “surrogate” judge, with a high level of subject matter expertise, becomes a bargain compared to the financial and emotional costs of a lengthy, public trial. Even at $1,000 an hour, mediation in this circumstance seems like a good deal.
So what’s the takeaway? I’ll let my imaginary farmers from the previous blog have the last word: “Glad this is Iowa and not Hollywood!”
Diagrams courtesy of Steve Sovern http://www.mediate.com/stevesovern/
One of the key elements of mediation is whether or not the conversation behind closed doors will be off-limits to the court. Anyone entering mediation should understand what this means.
Mediations are either open or closed. For reasons that will soon become apparent, the mediations I conduct are closed; that is, the parties involved agree not to subpoena one another or the mediator to go before a judge and describe what was said during the mediation session. Why would someone in an open mediation issue a subpoena? Let’s imagine a hypothetical case. Two farmers are mediating over a spoiled lot of corn. One farmer rented grain bin space from the other but his entire lot of corn was ruined when the grain bin dryer failed. During the mediation, the grain bin owner, in an attempt to move the discussion forward, admits that he never responded to a dryer-part recall notice that came in the mail. He meant to have the part replaced, but he forgot about it. He wants to pay his fair share to restore his reputation and do business with this farmer again. But his good intentions are foiled. The farmer of the ruined corn wanted this information to build his case in court against the grain bin owner. Instead of a good faith negotiation, the mediation session was a fishing expedition for the farmer whose crop was ruined. If the mediation had been closed, the two farmers might have had a chance to resolve their dispute and do business again. In a closed mediation, though both parties can discuss what was said with their lawyers, they can’t use statements made during the mediation against one another in court. Mediations don't always end in agreement. Some disputes must be settled in court despite hard work at a mediation table, but, going into a mediation that is closed from the outset suggests that all of the participants have the same goal - to stay out of court if possible.
All mediations, whether open or closed, are confidential. The mediator is ethically bound to protect the privacy of the clients. The mediator won’t and can’t discuss the case with anyone, unless, of course, the clients direct her to, or, in the case of an open mediation, the mediator is subpoenaed. And, it should be noted, if, during a family mediation the conversation reveals that one of the spouses or the children may be in danger, then the mediator may breach confidentiality to report her concerns.
Why do most mediators, including myself, conduct closed mediations? In order for clients to move toward agreement, there must be a feeling in the room of openness and transparency. This doesn’t mean that the parties necessarily believe each other's story. But, when mediation works, they hear one another, explore the possibilities that might lead to accommodating each other's needs, and work toward generating options that they can both live with. There is always an emotional landscape that the parties navigate. But, in transformative mediation, (which I'll describe more thoroughly in my next blog ) a closed session is essential for the parties to work together in good faith. Here's the takeaway: Being able to speak your mind openly may lead to a shift that transforms the conversation from one assigning blame to one finding solutions.
*If you have questions about your rights or obligations during mediation, please speak with your family lawyer. This discussion about open and closed mediation is based on standard mediation practice and may not apply in some cases.
I just got back from a workshop for mediators on the Alternatives to Violence Project (AVP), a program at work locally in Iowa’s prisons and in war zones around the world. These facilitator led workshops teach conflict resolution skills through an active, participatory, experiential process. Participants perform a series of “light and lively” games and role plays which get people off their feet, interacting and giggling together. The emotional demands of the exercises increase as the days progress. By day two, participants feel safe enough in their community of new friends to share their feelings and support and affirm one another. Often the participants are members of rival gangs or political factions, perpetrators and victims alike.
Those of us attending the workshop experienced an abbreviated version of the program’s process. I must confess the introvert in me approaches some of these activities with dread - ”You want me to do what?!” The opening activity was as promised...light and lively. We paired off to ask questions of one another and then came back to the circle to be introduced one at a time. We spoke our names and people in the circle were invited to tell the group what they learned about us in our pairing off. The gap between how we see ourselves and how others describe us is telling. I found myself wondering why people included certain details and left out others, and why I had both revealed and kept secret certain things about myself. The exercise reinforced how unreliable perceptions can be.
After lunch the workshop leader, Val Liveoak, from San Antonio, Texas, dialed up the intensity of our exercises. Drawing an imaginary line from zero to one hundred she said, “Place yourself on the line according to your level of self-care.” This seemed odd. We thought we were attending a peace workshop. What does self-care have to do with peace? We exchanged curious glances with one another and hesitantly placed ourselves on the line. Some of us clustered toward the top, some in the middle, one brave soul at the bottom. We took turns explaining why we were standing where we were and offering up slightly different ideas about what self-care means. Then Val asked us to move to the place on the line that we wished represented our level of self-care. Many moved closer to 100, a few stayed where they were or moved up only slightly. The conversation this time focused on what it would take for us to get to this more ideal level of self-care. Answers were similar…. exercise, better eating habits, more time to relax, attention to relationships. Those who didn’t move explained that they weren’t ready to make the sacrifices necessary to take better care of themselves. Some questioned if caring for yourself before others is a worthwhile goal.
When we returned to the circle someone asked the question on most of our minds: “What does self-care have to do with peace?” Val flipped the question back to the group. We concluded that in order for victims of violence to put themselves on the path toward peace, they must make a choice. The choice is both a letting go (of fear, hurt, and anger) and an embrace of the work that must be done to get better. Even considering the question, “Do I take care of myself?” encourages thinking about the role of personal responsibility in healing and wellness. It’s all a part of the same process - loving yourself allows you to heal; healing allows you to care for others; caring for others builds nurturing communities; nurturing communities foster peace. It all starts with self-care.
My takeaway for the day was summed up in Val’s statement about why AVP is a hands-on, experiential process. “We get people actively involved, she explained, because learning happens where experience and reflection meet.”
Several times a month I volunteer as a mediator at our local courthouse. Small claims mediation is always voluntary, confidential, more informal than the courtroom, and frequently leads to an agreement fashioned by the people involved in the dispute. Most mediation participants leave satisfied with the process. The other day, however, the defendant in a case expressed surprise when he arrived at court to find not the person he expected, but instead an attorney dressed in a three piece suit. The defendant took his seat at the mediation table and leaned in to ask, “Since when do they let attorneys into small claims court?” I didn’t have an answer for him, so I decided to dig into the question on my own. I was surprised by what I found.
Iowa is one of 38 states that allow lawyers into small claims court. There are some states, however, that acknowledge that one side showing up in court with an attorney could be intimidating to the other. For this reason, they stipulate that if one side has representation, the other can too. In Arizona, both parties have to agree in writing ahead of time that a lawyer can be present. In other states, including Colorado, Kansas, Montana, Oregon and Washington, the general rule of thumb is that lawyers aren’t welcome, unless the party seeking representation gets the consent of the judge. In Wyoming the rule is that if someone shows up with an attorney, the other side may ask for a continuance (delay) to return with an attorney of their own. There are six states that have issued a flat no to lawyers in small claims court; these include Arkansas, California, Idaho, Michigan, Nebraska and Virginia.
Another factor that sets state courts apart is the dollar limit that a plaintiff may seek in a claim. In Iowa claims are limited to $5,000. This seems to be a relatively standard limit…sixteen other states also cap claims at $5,000. Some states limit claims to a low of $1,500 (Kentucky) and a high of $25,000 in metropolitan parts of Tennessee. (If you live in one of Tennessee’s rural areas, your limit is $15,000). Interestingly, in South Carolina, landlord dispute claims can be filed for an unlimited amount of money. All other small claims cases in the state are limited to $7,500.
For information about small claims procedures in Iowa