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Alternatives to Family Court and the Challenge of Mediating Cases With Strong Emotions

Mediate, Don't Litigate, Your CA Divorce!

Some of you know that my hope for people with family law crises is that they mediate their disputes, rather than litigate them. This is why I am a co-founder of Desert Family Mediation Services (DFMS), serving the southern California inland and desert cites.

At DFMS we are sometimes reminded that people in relationship breakup who hope to employ mediation to resolve their disputes have a broad range of needs and expectations that involve emotional dynamics in widely differing degrees. Often this occurs when one or both parties expresses deep anger or hurt. It is not uncommon that these dynamics include feelings and judgments between the parties and others that are not immediately evident, but which spill into the mediation at some stage. There is no 'one size' that predicts every couple's circumstance or mediation experience, but it is to be expected that strong feelings about many things may be triggered during the process. If this occurs it can be useful in assisting the parties to facilitate their looking at these feelings, and the raw pain that often underlies them.

Otherwise, when for instance people become stuck in angry exchanges or refuse to consider that what is important to the other person may actually be relevant to both since no agreement can be reached without joint assent, the parties risk impasses that may imperil the mediation's success. We like to say that each party holds the key to unlocking the best resolution for both of them. Looking at emotional dynamics and the feeling and reactivity that they engender may be an essential component to the process, but this is quite different from suggesting that people's minds about what the hold to be true will necessary change or dissolve into a cloud of blissful forgiveness: We just find that positions loosen and dialogue is possible when we look at the judgments that relationship wounds accumulate.

Which is not to recognize that in every case it is necessary or even appropriate to review what the parties' feelings were or have become. Some people wishing to mediate have simply realized their marriage or domestic partnership is no longer working and can amicably admit it, and really just want nothing more than reliable help with the legal mechanics of dissolution. In those cases mediators tend to act more as scriveners - that is, the mediator's role is to formalize the party's agreement rather than to guide the parties by helping to resolve conflict. But even in these seemingly simple situations, there is no guarantee that powerful unforeseen or unacknowledged feelings will not come up in ways that cause a party or both parties pain and so make what seemed simple into something much more textured and complex.

It is often not uncommon that when we ask the parties whether they feel it may be or become prudent to discuss emotional issues during mediation one participant, but not always both, report that emotional hurts are not seen as something that will likely arise in mediation. This seems to be true especially where one party has checked out of the relationship some time before the decision is made to break up or is openly expressed to the other person. Psychologists call this "decoupling," and decoupling usually results not only in wide differences in each person's experience of the emotional breakup since one party may have what amounts to a 'head-start'. There are those whose views of "fairness" and "equity" are extensively colored by how the relationship ended or personal hurts or violated expectations that were suffered or inflicted along the way. Such situations also frequently include incidents of 'affairs' or other secretive behaviors that can be devastating to the person who is making a late discovery. Not surprisingly this can result in much anger and resentment, something that fuels conflict and disputes and makes unwinding them more challenging.

All cases are underpinned by important feelings about any number of possible subjects, and each contains its own hooks where people can find themselves getting stuck in an instant. When anger gets linked with concepts of "legal rights," it may be near impossible to work through the parties' interests within mediation without addressing these emotions in some meaningful way. This is one reason why Family Court exists, and why it remains the forum of choice for most people for ending relationships no matter how destructive and expensive it can become. People locked in conflict fueled by anger just may not be able to stop the cycle of reactivity.

A mediator early on is rarely able to foresee whether emotional triggers may threaten to derail the process at any point or stage. This is why we raise this issue for your consideration. But agreeing that emotional dynamics, including underlying anger or judgments, should be discussed at all may not be something both parties will easily agree to. There can be considerable fear about this topic. Perhaps understandably, many people already feel they have suffered enough from their own emotions or from the other's. However, since mediating your case is always a voluntary process for each of you (and the mediator too) it can be imperative that both parties be or become willing early on in order to entertain such a dialogue. This is not something that can be forced or imposed upon either.

Moreover, emotional dynamics and what underlies them challenge mediators equally as much as the parties. Mediators are susceptible to making judgments or being pulled into a relationship dynamic, and this can perpetuate the conflict rather than serve to assist in overcoming it.

Partly because of this recognition, together with Retired Judge Gretchen Taylor, I spent a week in early February, 2011, training with a small group of professional mediators and collaborative attorneys, including several from Europe, under the supervision of Gary F. Friedman, Jack Himmelstein, and Norman Fischer in a program entitled "Self-Reflection in Action: Using Our Inner Selves to Help People In Conflict". These gentlemen comprise the "The Center for Understanding in Conflict & The Center for Mediation in Law", based in Mill Valley. Gary is a mediation trainer, lawyer, and mediator based in Northern California; Jack is a former law professor at Columbia University Law School; and Norman is an author and former Zen abbot and practicing monk. We believe this group is at the cutting edge of developing a meaningful strategy for helping people to become unstuck in mediation.

All of the conflict professionals attending this course work regularly with families who are experiencing varying degrees of relationship crisis. Of particular focus was the high conflict divorce, where strong emotional reactions tend to have a major influence on how mediations unfold and upon their potential successes and failures. Often the parties' emotions can strike chords within the mediators themselves based upon their own life experiences, and so our goal in undertaking this work is to better understand not only your emotions but our own so that together we can navigate and move through conflict together successfully. Judgments, which are often unconscious, frequently impede the ability to move from the problem to the solution unless these judgments are investigated to some degree. Feelings always surround judgments, and are usually a reliable indicator that these judgments which are not evident are nonetheless in operation. By investigating these judgments and what lies beneath them to some extent in their own responses to the parties' expressions of conflict, mediators may be successful in moving parties forward when they otherwise appear to be stuck in impasses that threaten to end the process.

Mediation is not therapy. Even if you choose to mediate, or co-mediate, with one our DFMS mental health professionals (or divorce coaches in the case of Collaborative Mediations), the role of these experts is not intended to include therapy.

The process may nonetheless be therapeutic but only always as you invite and allow.

Understanding-based mediation is not intended to pry or force the parties' boundaries open beyond what they may be capable of or ready for. By this Blog I just want to acknowledge a possible role for de-escalating emotional dynamics within mediation by examining emotions and the judgments and pain that underlie them. I hope to introduce the idea that possibly addressing in some fashion the emotions and judgments that are an 'elephant in the room' anyway, and which can overwhelm the mediation process in important ways if not seen, is something that might better be faced head on.

At the commencement of our mediations, or at any other time, whether the dynamics of emotions that may affect your mediation is something that you want to discuss to some extent, or are willing to share, or feel safe expressing or hearing about, will be a topic for you each to decide as a set of ground rules. These require consent of all parties and the mediator. Your mediators cannot and will not force it.

The emotional dynamics that impact nuts and bolts as we address your values and interests in the process of settling your matters would be a valuable beginning conversation to have.


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