{2:42 minutes to read} Around this time of year, most people are considering resolutions for the new year. I never did that because I feel if you want to change something to be more positive, why wait? I prefer to reinvent myself or incorporate changes as they come to mind and when I can commit to them, be it on a Tuesday in March or the last week in December.

I’m not without end of the year rituals though. Mine are just in terms of the past rather than the future. I spend some time reflecting on the year that has passed.
It’s a little too difficult for me to do this in my head, so I actually look through my calendar and seeing the notations of things I have done brings those faded memories and the emotions they stirred (or not) to the forefront.

It runs the gamut:

• Some professional matters that were so troubling and time consuming in January are but a distant memory now. The beauty of perspective is that many of those matters that kept me awake at night and provoked such anxiety, just faded away.

• Other professional matters that didn’t just fade away with distance can be more thoroughly examined, and I can see what I can take from even the most negative experience in a more positive way.

• Seeing the name of a social event brings to mind the happy occasion and the friends and family with whom I shared it.

• Seeing crossed out days means time off from work, and I remember where I went and what I did as if it was yesterday as opposed to months ago

• Some dates and times of the year bring up some sad memories, and that’s okay too.

We all remember how as children, time practically stood still and the thought of the passing of a year was an unimaginably long time. Unfortunately, as we get older and want to savor the time more than ever, years just fly by.
So, this year consider giving some thought to the past before planning for the future, and . . . Happy New Year.

{3:00 minutes to read}   

Previously, I wrote about the benefit to parents in using a child specialist.  In this post, I am writing about the benefits to clients in using a divorce coach in certain situations.

It does sound odd to think that someone needs a coach to get a divorce.  At first blush it can bring up the wholly inappropriate picture of someone on the sidelines cheering you on as you prepare to end your marriage. That is most definitely not the role of a divorce coach.

A divorce coach is a mental health professional who has training and experience in working with couples who are going through the process of separation and divorce.

With all clients, I raise the idea of a divorce coach in my initial consultation with prospective mediation clients.  At this time, I provide an explanation of all of the professionals who are available to assist them in making good decisions (attorneys, financial professionals, mental health professionals, appraisers and the like).

With certain clients, if I see that one or both are persistently reacting to triggers that lead to unproductive meetings and that my interventions to get them back on track are not working, I will raise the idea that our meetings seem to be getting bogged down and ask if one or both would consider engaging a divorce coach.

The first thing clients usually say if I suggest how they could benefit from this, is that they already have a therapist.  I explain this is not therapy in that sense.  Divorce coaching is not a long term process and instead is a highly focused meeting or meetings to address how a person can get through the process of separating more easily and be a better participant in a mediation.  Some of the benefits are:

• To manage and contain highly charged emotions;

• To address a specific situation like an affair;

• To recognize triggers that can derail a meeting and develop a strategy to avoid reacting to it;

• To provide closure at the end of a mediation to address the past and what will be a different future.

Certainly, most clients do not need to involve a divorce coach, but in those situations where clients can’t seem to get beyond the past, the divorce coach can help them refocus and move forward.  Although there is an additional fee in retaining another professional, it makes the mediation more productive, which saves money in the long run.

Would you consider working with a divorce coach? Please feel free to leave a comment in the box below.

{3:18 minutes to read} I am attending a series of workshops for mediators who are interested in practicing mindfulness tools to help alleviate stress, impart focus and extend compassion not just to others but also to ourselves.

To start in a small way, our trainer suggested as an exercise, to practice mindfulness while brushing your teeth–to really think about how the toothpaste tastes, how it feels against each tooth, the sounds.  I had to laugh because as the consummate multi-tasker, brushing my teeth means that I am simultaneously cleaning up the counter, reading a magazine, or even on occasion walking out of the room to watch television.

Of course, I recognize that a focus on more than one thing doesn’t make me more effective and instead has the opposite effect.  But it’s a hard habit to break.  For example:

I tend to glance at emails or absentmindedly play a FreeCell game while in front of my computer talking with a friend.  So after my first mindfulness workshop, I made myself just sit back while on the phone, kept my hands off the mouse and ignored the pings of email alerts.  Not only did I fully focus on the conversation, but because I was mindful of the time since I wasn’t also reading emails or playing a game, I got off the phone more quickly than I would have otherwise.  Needless to say, none of my emails couldn’t wait the fifteen minutes for me to finish my call, and I paid more attention to them when I wasn’t distracted.  (I even played a better game of FreeCell when I focused on just that.)

So, why mindfulness and meditation for mediators?  The qualities inherent in being mindful are the same as those that are beneficial in a good mediator:

1. Non-judging - being impartial and being aware of your own reactions

2. Patience - letting the clients go at their pace and not jumping to where you think they should be going

3. Beginner’s mind - be curious and open to brainstorming

4. Authenticity - be yourself, honest and transparent

5. Empathy - understand the clients and be compassionate

6. Respect - acknowledge where clients are and treat them and the process with dignity

7. Thankful - appreciate that our clients chose to mediate and give us that opportunity

And most importantly, Acceptance.  We do our best to work with our clients and help them reach agreement, but it remains their mediation and their agreement to make or not.  We are not responsible for their outcome.

I hope that as I incorporate meditation and mindfulness into my life, I can be more present and centered in my sessions and provide that thoughtfulness to my clients.

Do you practice mindful mediation?  Feel free to share your experiences in the box below.

{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.

Should that be the case, I tell clients that I would not draft an agreement unless they have consulted with attorneys. I would require this not just for the benefit of the person who would be giving up significant rights but also for the benefit of the other party. If the Agreement is likely to be challenged and may be found to be so unconscionable as to be rescinded, it does not serve either party’s ultimate purpose.

{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.

How do you achieve balance in your life?  Please feel free to comment in the reply box below.

{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.

So, if given a choice, mediate your divorce and keep control. Above all, resolve your matter without involving a court or attorneys.

{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.

What is your understanding of “self-determination?”  Please feel free to share your thoughts in the comments section below.