The Power of the Hostile Mediator

Several years ago I would have poo poo’d this article. But being a divorce mediator now for close to 10 years I think in many cases being hard-nosed or even hostile can force the parties out of their own embedded hostilities and increases their willingness to come to agreement. I’m not certain why but my gut gives these reasons: 1. hard-edged and/or hostile gives the mediator power and the mediator “controlling” the power causes the parties to want to agree. 2. The mediator’s use of hostility makes the parties feel like they SHOULD be reaching agreement or that if they do, they can be done with this process which is proving to be very uncomfortable. 3. A hostile mediator takes the power from the parties which takes their mind off “positioning” and makes them more vulnerable and therefore more open to agreement.

It is not going to work in all situations but I daresay that in many cases this approach yields results quicker. The mediator has to be careful to make certain the toughness/hostility is directed at both parties and is not about just one party. This is crucial.

Why Am I A Mediator?

Why do lawyers become mediators? One reason I hear pretty often is to get out of the “stress” of being a lawyer. Another common reason is because “I want to help people resolve their differences peacefully.” Yes, back in the day, I too sort of had those reasons when I first approached mediating. However, as time has passed and I have mediated more and more, I know these reasons are not good ones. Mediating carries its own stresses. You have to work with difficult people, you need thick skin because people come in with expectations that if you fail to fulfill mark you as “no good.” Finally, reality testing people’s beliefs and expectations is a highly developed skill and sometimes, I swear, all the tools in the toolbox do not matter. The second reason is awesome in theory however the reality of mediating is much different than a pie-in-the-sky peace process. People generally do not come to the table calm, rational, reasoned, and in touch with their own needs nor do they stay at the table easily. And while I do not consider it my “job” to keep people in the process, they have to choose to stay and a good skillset does wonders. The mediator has to possess the skills to create a process that can work for the parties in the room and then also have the skills to roll with the process and make changes as needed – keeping the parties at the table, keeping them talking, keeping them thinking – and, at the same time, revealing how progress can be made and facilitating it.

Because my mediation work focuses on spouses going through divorce, I am working with people facing a traumatic life event. I feel privileged to work most often with unrepresented parties in mediation because I get to emphasize self determination and self-empowerment. Sitting in a room to resolve differences and determine whether divorce is the next step and if so, how to do that, requires that each party be empowered so as to know what it is they need and what it is they need to say. In general, conflict is one of the best ways to grow as a person and being able to facilitate a process that engages people (including me because I do learn from all my cases) in a process geared toward self growth is satsifying in a way pure advocacy is not. I have spent years developing these skills through education, my own life experience, and experience working as a mediator. Some of these skills include how to be impartial, negotiation, designing mediation processes, and understanding behavioral sciences. These skills are fundamentally different than my advocacy skills.

I am a mediator not to get away from the stress of lawyering and not because I have some unrealistic ideas about peace and mediation. I mediate because Jesus mediates God to men and in imitation of Him, I try to be a conduit of His love to all who encounter me: that is I try and mediate the love of Christ to those in conflict. That’s a mouthful right? Look, I dont mediate Him in a religious sense nor am I looking for conversions. No no no. I am not sitting there at my mediations saying “Jesus” over and over again. I take very seriously the education needed to be a mediator including the understanding of behavioral sciences, the development of necessary communication skills, and the all the continuing education offered from a variety of sources in and for the mediation profession. At the same time, however, I also think people in conflict need Truth, Love, Hope. All of that is Jesus. And because He came for all of us, I think His love can be mediated to all.

But how then do I do that? Well, first, I work hard to stay educated in the mediation field by taking classes, reading, and adding tools to my toolbox. Second, I humbly look at my own life and recognize the conflict I face regularly and work hard to practice what I preach so as to be authentic when I am asking others to do it. Third, staying humble allows me never to make guarantees or attribute success to myself. Rather, I remind my clients in mediation, success is really and truly up to them. Finally, because I try to love each person who comes to my office as He would love them – without condemnation, with His Truth and with His Love. Sometimes it means saying things someone does not want to hear or turning people away from the mediation process because it is not appropriate for their conflict. Sometimes it means working only with one person specifically who is open to seeing a path forward that is uniquely from Him as opposed to one created by our own will. The credit always belongs to God. It’s more Him doing it than me, I pray. We have choices, friends, and I want to offer His Love as a choice always – so I do. His love is usually never easy and instead a much more difficult road for most. Sometimes it can mean walking away, sometimes it means you must fight…it is never only looking out for yourself. I’m not there to force anything – that’s up to you and in my mind, up to Him to do what He does best – knock on the door of each of our hearts.

So what started this post was this article.. The article reflects on the question of why one becomes a mediator. It’s short and a quick read. Enjoy.

Diverse Family Structures and Equality of Children

I recently collaborated with Jennifer Johnson from the Ruth Institute on an article that got published in the Summer Newsletter of the Minority Trial Lawyer Section of Litigation for the ABA. You can find that here. This felt great, of course, and Jennifer and I are so pleased the article was picked up. A special shout out to my longtime friend and first rate attorney, Florence M. Johnson, who gave me the opportunity to write and helped move this article where it needed to go.

Jennifer interviewed me recently to introduce the article and me to the RI audience and I am so very honored to be included. You can read the interview here. Let me say this, the jist of the article we did together springs from Jennifer’s book, Marriage and Equality. The focus in her book is that children are denied equality in family structures that are different than the natural triad – mother, father and child. It is truly a great read that comes from the heart and is well thought out and well supported. My contribution to the article is asking the legal community to think about whether the legal system denies equality to children because there is really no focus on how the diverse family structures adults are creating actually create struggle and inequality for children. Below is an excerpt.

Due to no-fault divorce and “diverse family structures,” children often experience a form of inequality that is largely ignored. With lawyers and judges focused on a liberty that is defined as adults’ happiness with their family structure choices, there is little focus on the inequalities these choices create for children. The legal profession readily supports the thinking that a happy adult makes for a happy child, yet we disregard a century of jurisprudence linking the state’s interest in natural marriage to children and their formation, and the substantial body of literature linking children and communities flourishing with the stable presence within a family of married, biological parents. Nor does the “best interests of the child” standard address this form of structural inequality. Finally, it is only fair to consider the testimonies of the children affected, especially once they are old enough to separate appropriately from their parents, examine their childhoods in an objective manner, and then decide for themselves how fair and just it was.

You can continue reading the article here.

Enjoy! Yay us! – to quote London Tipton. 🙂

Do You Qualify For Divorce?

I generally write about divorce from a faith based perspective, specifically, that stepping back from whatever is going on in your marriage and reminding one another what God says about marriage and what marriage means in the “supernatural order” is a meaningful place to start in determining whether divorce is really something you both want to do. However, I found this TED talk by a divorce mediator, Michelle Rozen, and I think it’s pretty good.

First she talks about how prevalent divorce is in our culture and more to it, that divorce is in fact contagious. She cites a study that states your chances for divorce increase a whopping 75% if someone from your close circle of friends or family get divorced. That is huge! Divorce really is contagious and I say it all the time. I also say to those couples who stay married and fight through the difficult periods – you are making a difference to all those who come in contact with you – from your kids to your neighbors to your friends and family and even to strangers. When people see strong marriages, they work harder at their own. When they see couples get through adversity it motivates them to work through their own issues. I will go further and say just because you are not always “happy” does not mean you are keeping your kids in a “bad” situation. That is nonsense talk. Your kids need to see ups and downs of life. Your kids need to see the reality of marriage which goes from a bubbling exciting smaller river to a more powerful, calm river like the Mississippi. There are some not good times in there and then there are amazing times. But what really comes out is commitment and what it means to love.

Sorry…I digressed. Ms. Rozen discusses a three question approach she gives to couples to determine whether they “qualify” for divorce. And people like little “tests” that gives them answers. So I was intrigued. After listening, what I really liked, were the second and third questions which I think are impactful on the first question. The second question asks: how much have I been doing more of the same in order to create the change I want to see. And the third question asks, how responsible am I for the failure of this relationship. So as you watch and listen to this TED talk, keep your answers to the second and third questions in mind before you answer the first question. Answering the first question without the other two is probably an unfair assessment.

Take a view of Ms. Rozen’s Ted talk. It’s short and the three questions are also a good starting point in determining where you are in your marriage.

Derek and Julianne Performance of Trauma of Divorce

Beautiful to see art portray the pain of divorce. This dance is based on a true story for Derek and Julianne Hough whose parents divorced when they were young and each child went to live with a different parent. The dance is about the pain of the divorce in having their family torn apart. Sort of seems to show what the kids go through. It is fascinating and worth watching more than once. I think at the end there is reconciliation with their parents in some way.

Anyway…the dancing and choreography and emotion is intense. Let it never ever never never never ever be said that kids (even adult kids) are ok after divorce. That is just not true. Divorce always scars permanently.