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
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.