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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.
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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. www.peacewisemediation.com
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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.www.peacewisemediation.com
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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.
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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
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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 GuidelinesFor information about MSEIwww.peacewisemediation.com
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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
www.peacewisemediation.com
