Mediation - A Labyrinth, Not A Maze

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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.

When Slowing Down Speeds Things Up

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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.”

Finding $ + ? = :-) in Small Claims Court

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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.

Pull Up a Chair and Meet the Mediators

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Ah, facebook! I recently reconnected with an old college friend who was excited to hear I'm a mediator. Her husband’s law partner, she explained, had recently retired to a lucrative second career as a divorce mediator. “He’s making a killing!” she enthused. “He’s pulling in $8,000 a day and he’s booked every day of the month!” "How's it going for you?" she asked. I answered, "We do things differently in Iowa.”

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

Why Keeping It Closed Opens It Up

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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.