{3:55 minutes to read} We all tend to adapt a story in retelling it.  It’s mostly small points, but sometimes people who may have lived through the event with us will notice that some liberties have been taken.

It doesn’t mean that the embellishment is done to purposely avoid the truth.  It could be:

• How we actually recall the event;

• Our “version” makes an amusing story more amusing; or,

• It puts us in a more flattering light.

And in most cases, it really doesn’t matter.  We’re just telling stories to friends and family, and we’re not being held to a high standard of truth.

But does it matter when our clients each have a very different version of the same event?

As a mediator, it doesn’t matter to me because we are not in mediation to make a determination as to the truth or fiction of past events as told by the parties.  I explain to clients that we’re there to help them resolve their futures, and that I’m not a judge or jury who is going to render a decision as to who is telling the truth.

But if those conflicting stories continue to be raised, the differences between them must be very important to the parties.  Each of them firmly believes his or her point of view is what really happened, and what they remember is impacting how they feel about resolving the issues right now.

I don’t want to spend their time and money in the futile attempt to try to determine the truth of past events, but I also don’t just want to dismiss it as not relevant when it is clearly relevant to them.

If the issue is blocking them from moving forward, then it doesn’t really matter whether it’s true or not.  For each of them, their recollection is so ingrained that it is their reality.

So, I think it’s important to talk about how they are not going to change the other’s reality, and that we are not in mediation to discover which recollection is correct.  Rather, it’s a question of each of them accepting that the other person truly believes it to be true, even if they don’t agree with that recollection.  

The focus of the conversation then shifts to why the story is important to them and what can be done in the future to insure that their interests are met versus arguing about whose version of the past is correct.

Comments from Social Media

Good topic of discussion. To help people get interests met, they have to move off blaming and towards problem solving. Extremely difficult to do due to emotional hurt lowering visionary ideas. While the emotions have to be validated, the focus is indeed on "where can we go from here" or "what do we do now" or "how can we get interests met and feel more at peace?"

Michael Toebe

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{4:00 minutes to read} Recently I received a notice of a Continuing Legal Education course sponsored by a bar association on the topic of child custody.

Ever the optimist, I took a look at the description and agenda hoping to find an offering on resolving custody through a non-adversarial approach. However, there was nothing offered regarding mediation or collaborative practice, both of which can be found on the website of the New York State Unified Court System.

Yes, I know that this program is geared to matrimonial attorneys and that they seek education as to the Court process. However, I find it astounding that in an all-day program, the agenda fails to include a section on attorneys discussing alternative options with their clients if custody is an issue.

The Program Agenda is divided into these sections:

• Attorney for the Spouse/Party

• Attorney for the Child

• The Role and Responsibilities of the Judge

• The Mental Health Expert/Forensic

Within these sections are topics such as “Advising the Client What Happens if Custody is Litigated”; “How the AFC Does the Day-to-Day Job”; “What is the Judge Looking For”; and “Conducting a Forensic Evaluation.”

Very practical instruction for a litigation, but even with that instruction, what I find sorely lacking is a topic on the devastating effects of a protracted custody battle on children and how to avoid it. I imagine that the effects of litigation on children might be mentioned in some of the other presentations, but I doubt the focus would be about how to avoid that impact by not litigating.  

I understand that custody battles happen, and in some cases the other party has no choice if dealing with a party who is unstable and determined to use the process to his or her advantage. However, shouldn’t there be some instruction to attorneys as to alternatives in cases that could be resolved in a mediation?

Or to truly go out on a limb:

Shouldn’t attorneys in a custody trial be required to inform their clients about mediation before they embark upon a process that often leaves the parents, as well as their children, with irreparable emotional harm?

Or to nearly fall off that limb:

Shouldn’t the New York State Judiciary Committee have seriously considered adopting the Bill (Assembly Bill A876/Senate Companion Bill S3734) that had been submitted to it for 2 consecutive years by the New York State Legislature which would “encourage the settlement of custody and parenting disputes expeditiously, voluntarily, and without adversarial (and costly) litigation?”

I certainly think so, and because I am still an optimist, I will continue to petition my legislators for passage of such a bill and continue to promote the benefits of a mediated agreement to the public.  

I will even send a letter to my bar association to request that future programs include a section on a non-adversarial approach.

Should programs of this sort contain information on the non-adversarial approach? Please feel free to leave a comment in the box below.  

Comments from Social Media

Clare, you are absolutely correct - the best techniques for achieving a negotiated settlement should be part of every bar course involving litigation, whether matrimonial or other civil litigation. It might be useful for you to contact the attorney and ask whether he/she had considered it and offer to prepare the relevant section on mediation and negotiation for the next time around.

Linda Alpert

{3:36 minutes to read} In a previous post, I discussed the difficulty faced by a mediator when he or she needs to consider whether or not the client’s right to self-determination should be controlling in the face of an agreement that could be considered unconscionable.

In my initial consultation with clients, I try to draw the distinction for them between someone who:

• Is unable to fully participate in the mediation;

• Does not have the capacity to mediate or

• Cannot advocate for himself or herself.

Versus someone who:

• Has the capacity to make decisions;

• Is an advocate;

• Is a full participant in the mediation process.

Lacks the Capacity to Mediate

The first type of client could include someone who is the victim of domestic violence or is unable to advocate due to mental illness or substance abuse. While these matters might be mediated with the proper safeguards and a trained mediator, they present challenges that need to be addressed. If these challenges cannot be overcome, then the parties should not mediate and should seek a dispute resolution forum which would provide the support and protections they require.

Has the Capacity to Mediate

Here, I draw the distinction between what might be viewed as a decision most people would think is contrary to law versus a decision that most people would think is unconscionable and one which would render the Agreement unenforceable if challenged.

For example, in the former, I explain that I am not talking about the garden variety case where for whatever reason, one party is willing to give more than what might customarily be considered the norm, such as a party waiving the right to a particular asset, or paying or receiving more or less than what is generally accepted in terms of support. In those cases, the decision does not render either party destitute. As long as they are fully informed, I believe a client has the absolute right to make these decisions, even if I believe them to be poor ones.

On the other hand, when clients agree to terms that would not be upheld by the Court if the Agreement is challenged because the terms are so grossly unfair, I tell my clients that while I respect their right to self-determination, it does no good for them if I draft an agreement under those circumstances.

{3:24 minutes to read} When I mentioned to a friend that I loved the balance poses in yoga the best, her reply was that she wasn’t surprised because she thought I was the most balanced person she knows.

I laughed at the connection, but then when I thought about it, I do have a very strong sense of balance that plays out in many different ways.

• I would hate living in a place that was sunny all the time. After a string of sunny days, I long for rain, or at the very least a cloudy day.

• I could never consider living in a place that doesn’t have four seasons. By the end of the summer, I’m eager for the fall and even the winter.

• By the end of a vacation, I’m always ready to go home.

• If I go out to dinner for several days in a row, I yearn for a healthy, home-cooked meal.

Balance <> Equality

Although it is a common definition of balance, I don’t equate balance with equality. It’s not that I seek an equal amount of sunny and rainy days or spend as many days eating at home as going to restaurants. It’s more like an inherent sense that even too much of a good thing needs to be balanced with something that permits me to be more reflective, and thus able to fully appreciate the other. To me, balance is the avoidance of extremes.

For the couples with whom I work, I think that sense of balance may be missing, and I try to help them find it.

When you are going through a separation, it is usually devastating and scary. You have no idea what your future may bring. Balanced thoughts are not likely to be your first. In fact, your first thought may go to the extreme:

• I’m going to be penniless, struggle alone, and not be able to support myself and my children.

• I need to fight for and get everything to which I’m entitled and then some.

That can lead you to make choices such as hiring an attorney who is going to look for a one-sided agreement. Those decisions aren’t in your best interest and tend to make it even more difficult for you to find balance.

On the other hand, if you and your spouse can agree to mediate, you will enter into a process in which your fears and concerns are going to be heard and addressed, as will those of your spouse. At that point, you can look at things in a more balanced way, more quickly.

{3:30 minutes to read} I always stress the importance of the client's right of control in a mediated matter versus the loss of control clients experience in a litigation or in an attorney negotiated matter.

My recent, 2nd personal brush with the legal system reminded me of the 1st, and brought the concept of client control in mediation to an ever greater importance for me.

A few years before I became a mediator, and still litigated matters, I retained an attorney to petition the court for guardianship of my aunt, who was in a coma after suffering a stroke. It was uncontested in that all family members agreed with my appointment. Even with that, since abuses of the guardianship process exist, there was a hearing, and questions raised by the attorney appointed for my aunt had to be addressed. I remember that when the judge’s clerk asked the attorneys to meet for a conference, I automatically got up, and then realized I was the client and not invited.  

It was a horrible feeling to be left out of discussions that affected my life and that of my family. It was also a first-hand experience of how my clients felt out of control when they were left alone on a bench while the attorneys, without their input, talked about decisions that had a major impact on them.

Of course, the delays and the timetable, which were solely dictated by the court and over which the litigants have no control, were also frustrating. This schedule failed to address the very real issues that were arising as a result of my not being able to act on behalf of my aunt.

My 2nd personal encounter with the court system was being called for federal jury duty. I was excused as a juror on a criminal trial, but I was selected for 4 weeks of grand jury duty, a service from which very few were excused.

There are 3 permitted absences. Everything else is out of your control and subject to the scheduling and convenience of those in control of the grand jury process.

This means that you do not control your own schedule -- personal and work -- for 4 weeks because, until you hear a recorded message at 6 p.m. the night before, you don’t know what time you need to report the next day. On some days, you are there to hear only one case (taking less than 1/2 of the time of my 3-hour round trip commute), and on the other days, you have 2 - 2 1/2 hour breaks in between cases.

It became clear pretty quickly that the system is not designed with the consideration of jurors or litigants paramount. As challenging as jury service was for me, it pales in comparison to having to deal with the lack of control when your future and your children’s futures are on the line.

{3 minutes to read}  It’s rare that I don’t have a mediation in which at least one of the participants will say “I just want to do what’s fair.” I think that’s a reasonable statement and that they wholeheartedly mean it when they say it. But what does that really mean?

Is It Fair Under the Law?

Sometimes clients want to know if it is fair under the law. This assumes that the application of the law is inherently fair, which I don’t believe is consistently true. Statutes are interpreted differently based on relevant and sometimes irrelevant factors, but even if the statute is applied correctly, there is one winner and one loser. Ultimately, both parties lose, given the emotional and financial costs inherent in the process, and unintended consequences arise even for the “winner.”

Is it Appropriate Under the Circumstances?

Other times, clients want to know if it is appropriate under the circumstances. To me, that offers quite a bit of latitude since I don’t think it’s difficult to be able to fashion something as being appropriate, if that is your aim, since the measure of what is appropriate can be a very low bar.

Equal Footing

I also sense that clients do strive to have each of them treated equally, and I can understand the desire to want this. To me, though, it will only work in circumstances when both parties are in fact on equal footing. In other circumstances, it could be like comparing apples to oranges, and it will take a lot of effort to achieve that. For example, when you have a parent who has the children for 70% of the time, it’s difficult to equalize all of the factors with a parent who has the children for 30% of the time.

Is our Proposal Fair?

Invariably, after clients express their desire to be fair, they usually ask me if I think that their proposal is fair. Because from the client's’ perspective, it’s a legitimate question to ask, I try to explain fully why I don’t answer that.

What I think about their agreement is not as relevant as what they think about their agreement. As long as they are not doing something unconscionable, I think that that the measure of fairness is up to them to determine.

I explain that for all of the reasons I’ve indicated above, fair is a very subjective term, and that fair to me likely is different from fair to each of them and different from what their respective attorneys might think is fair.

I suggest instead that the parties focus on the overall agreement being one that is mutually beneficial to each of them and one that focuses on what is best for their children.

How do you define what is “fair?”

Please share your thoughts and comments in the box below.

Comments from Social Media

How about the fact that the laws vary from jurisdiction to jurisdiction? If they were fundamentally fair, why are the laws pertaining to the exact same situations not the same everywhere?

Mark Baer

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Enjoyed this article and way of thinking. There are very few mediations where at least one party has said not said they'd like the end result to be "fair". Fair definitely is in the eye of the beholder. Will be sharing that message and thank you!

Carey Allen

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Great article by my colleague Clare Piro

Debra Vey-Voda Hamilton

{3:48 minutes to read} This question is the subject of many a treatise, panel discussion, informal debate among mediators, and heartfelt soul-searching for an individual mediator confronted with the situation.

If you’ve been mediating a while, undoubtedly this has come up for you. Or if you’re a client in a mediation, you may wonder just how strong is your right to determine the outcome. The scenario:

A client knows the substantive law on the issue, understands the likelihood of what might happen if he or she goes to court, and, most confounding to the mediator, understands the possible negative outcome of the choice. Nonetheless, the client insists upon a decision that the mediator believes is not sound or proper.

There can be many reasons for this. As noted in a previous post,  wanting to get the matter resolved can be first and foremost a reason for the decision, but that is not the only motivation. It can be:

• Guilt;

• Compassion for the other party;

• Taking on an extreme caretaking role; or even

• An unreasonable optimism about their future circumstances.

As a mediator, I’m not sure if the reason matters. Although it certainly speaks to whether or not the person has capacity and is making an informed decision, in terms of my having a concern over their ability to live in the future, it makes no difference.

There is guidance in the Model Standards of Practice for Family and Divorce Mediation.

First and foremost, Standard I provides:

“A family mediator shall recognize that mediation is based on the principle of self-determination by the participants.”

Then, Standard XI cites, among the circumstances under which a mediator should consider suspending or terminating the mediation, that the parties are about to enter into an agreement that the mediator believes to be unconscionable.

So, self-determination is paramount, but a mediator should consider terminating the mediation if he or she feels that the terms are unconscionable. Herein lies the dilemma:

• According to the preamble to the Model Standards, “should" indicates that the practice described in the Standard is "highly desirable and should be departed from only with very strong reason." It has more weight than “may,” but less than the rarely used “shall” which means that the mediator cannot deviate from the standard.

• Then the word “consider” again gives more discretion to the mediator and less of a mandate.

• Finally, the term “unconscionable” raises a question. Is it the common definition of “not right or reasonable,” or the definition used in law, “unusually harsh and shocking to the conscience; that which is so grossly unfair that a court will proscribe it.”

So, yes, guidance is provided, but not the answer.

Clearly, this is not a question to be fully explored in one or two blog posts, and I would not purport to do so.  But in my next post, I will explain how I address it, and the explanation I give to my clients.

{3:36 minutes to read}  

When I practiced family law in an adversarial setting, I always felt a little guilty when I said that I enjoyed it, given that I was working with people who were going through one of the worst times of their lives. But in contrast to the other parts of my practice (real estate and estate matters), family law was interesting, dynamic, and challenging. Presenting and opposing arguments was intellectually stimulating based upon the substantial case law. I also genuinely liked most of my clients and felt that I was helping them in advocating for them.

What I didn’t enjoy was:

• The lack of control over the process;

• The constant waiting for another attorney to respond;

• Waiting for the court to take action;

• The delaying tactics that could be employed by the other party;

• The cost of needless litigation to my client; and most of all,

• The negative impact that the adversarial process could have on clients and their children.

When I finally took mediation training 10 years ago, I joined every mediation organization I could find, immersed myself in the mediation community, and took advanced training and workshops, eager to learn more.

What is it about mediation that resonated with me personally as opposed to my belief that it’s the best option for most couples separating?

• Every mediation is different. Like my former adversarial practice, mediation remains a stimulating and challenging endeavor. But unlike my former practice, the focus is on helping the parties come to a mutual resolution.

• It is less stressful. This doesn’t mean that I no longer think about my clients or obsess over some of my cases outside of the meetings. It does mean that, for the most part, I don’t stay awake at night or ruin my vacation stressing over a litigated case.

• I’m part of a solution rather than part of a problem. I like the fact that, in most cases, there is a positive outlook in mediation and a focus on moving forward. In the adversarial process, it was my experience that most cases focused on the past in terms of blame and using those past occurrences as a reason for your client to receive something more.

At least for me, there seemed to be something inherent in the adversarial process that occasionally overtook me; I took things too personally and sometimes engaged in non-productive behavior. I like not doing that any longer.

{3:24 minutes to read} Depending on your situation, resolving your parenting plan can be the simplest or most difficult part of your mediation.

• I have had clients who spoke about it in advance of the meeting, and but for a few minor points, had it all resolved.

• I’ve also had clients who spent several meetings to achieve a plan that they both could agree was the best for their family.

• Most of my clients, however, will spend one entire meeting on resolving parenting issues.

However long it takes, it should be recognized as something that is subject to change.

I’m not talking about the minor changes that can arise as your 6-year-old becomes older and develops a life of her own, rendering your carefully planned access schedule subject to her activities and developing social life. Hopefully, as parents, you can work the scheduling issues out between you.

I’m talking about major things that can require an amendment to your agreement such as:

• A need to relocate out of the area (as discussed in an earlier post);

• A child’s desire to spend more time with a parent;

• A change of work hours for a parent; or,

• One or both parents believing that the plan is not working for them or the children.

To some extent, these possibilities might be addressed and agreed upon in the original mediation if there is a very young child, or if one or both parents feel that such a change is on the horizon. In most cases, however, it is not worth taking the time to explore and agree upon these potential circumstances, except to discuss in general terms the process the parties would want to follow if anything like this did happen.

• If the parents can reach an agreement, they may consider getting input from the children through the use of a child specialist or a parenting coordinator.

• Before committing to major change, the parents may, if practical, want to have a trial period to see if the change is in the best interest of the children.

• Parents may also decide to incorporate any changes, such as a transition to equal parenting time with the children, slowly, inviting the children’s feedback so they feel heard and recognized.

If the parents ultimately agree to a major change in their parenting plan, it should be made in writing as an amendment to their Separation Agreement. In New York, that amendment should be incorporated into an Amended Judgment of Divorce.

Have the needs of your children changed over the years since your divorce? How did you accommodate those changes in your Settlement Agreement?

{3:36 minutes to read} I have to say that some variation on that question is often asked of me by my mediation clients. Almost uniformly, the clients who ask that question are never my most difficult.

I suspect they may feel they are being difficult because they may have:

• Had a protracted disagreement over an issue that didn’t get resolved by the end of the meeting;

• Voiced resentment or frustration with their spouse; or

• Raised their voices as part of a heated discussion.

To me, that doesn’t make them difficult; that makes them human.

Divorce mediation by its very nature addresses highly charged topics, and a properly trained mediator can help the parties handle those strong emotions. (Of course, I’m drawing a distinction between expressing anger and a diatribe that would be considered abusive.)

Yes, I do have clients who never seem upset, angry or even sarcastic. They may speak in even tones, but that doesn’t necessarily make them “easy” or “difficult” mediation clients. Some very harsh and/or uncompromising statements can be said without the hint of belligerence.

What makes a case difficult to me is when one or both clients prefer:

• The fight to the settlement; or

• To talk about past faults rather than propose terms for the future.

With most clients, I am tolerant of some history, especially in the beginning of the mediation, because it may be necessary for someone to get that out, be heard and then move on. When that becomes the focus, though, and it is difficult to reel one or both back to talking about the issues at hand, then that makes a difficult mediation to me.

Recently, a client asked me at the end of a meeting if I wanted to work with them again because they were so tough. I was actually surprised because, while there were some heated discussions and frustration expressed over past behavior, they actually made some progress in the face of some very challenging circumstances. I explained that my focus was on the fact that they were able, for the most part, to put aside the anger and talk about realistic resolutions, and I would be willing to continue if they felt that progress had been made, which they did.

The clients that I consider to be problematic are those who lack the self-awareness to recognize that they may acted inappropriately. True high-conflict personalities, as defined by well known mediator and instructor Bill Eddy, would be so entrenched in their belief that they are right that they wouldn’t even consider having a personality flaw that would make others consider them difficult. Those would be my most demanding mediations.