Just when I thought I knew all there was to know about mediation, I learned something new. I know that mediation, the process of resolving legal issues with the assistance of someone trained to help warring parties find creative solutions, is often better for divorcing spouses than having a trial. I have served as a mediator in numerous custody cases. As a Family Law practitioner, I have attended dozens of mediations while representing clients. As a Guardian Ad Litem for children, I’ve sat through mediations between the parents in case I could be of assistance with child-related issues. And as an adjunct Family Law professor, I have taught the mechanics and benefits of mediation to law students for seventeen years. I’ve even written articles about it, such as Take the Bat Out of the Battle, extolling its virtues for parties going through divorce.
So what is there left for me to learn? What’s missing from all that hands-on experience? The one perspective that probably matters the most. I had never participated in mediation as a party – as the one who actually had something at stake. Until last month.
I was in court to collect money that had been owed to me for a year and a half because I didn’t see the situation changing on its own any time soon. When the judge called our case, he asked us if we would like to mediate the case before having him hear it. I mentally rolled my eyes (it’s not good to actually roll your eyes when the judge asks a question) and asked myself what would be the point. I had already made two previous agreements with the individual over the past two years, and neither one had been honored. Besides – I was right. She had absolutely no defense. This was a slam-dunk case. I could be out of there in five minutes if it went to the judge. Who knew how long it would take if we tried to mediate it. As in, try to make another agreement with somebody I no longer trusted.
I looked over at my opponent and she shrugged – not quite sure what mediation was all about. The judge made the decision for me, suggesting that we give it a try. Not following the judge’s “suggestion” is about as well-received as eye-rolling. So off we trotted with a mediator who was standing by. The judge was already dealing with his next case.
My opponent and I sat across from each other at a conference table and the mediator sat at the head, forming a triangle with us. He started patiently explaining what mediation was, how it worked, and what was expected of us. I was still in professional attorney mode – and quite annoyed that I had to sit through a talk that I had given myself numerous times. I resisted the urge to “help” move things along.
And then we each had an opportunity to sum up our positions. To my shock and horror, I started getting a little emotional. What the . . . ? Attorneys don’t get misty-eyed when they talk. It just isn’t . . . done. I realized that it was less attorney-opponent and more two people who didn’t agree. Sure, we had “exchanged positions” before – but always through brusk phone exchanges or carefully worded emails. Never sitting across a table while looking at each other. Nothing like seeing a wince, frown, surprise, hurt rolling across the face of somebody you’re talking or listening to for a new perspective. Hearing is more than just taking in sound – it’s processing the words, registering them.
Here are a few things I learned about mediation from my new perspective:
- We can make erroneous assumptions about the other’s position. Somehow, in our heads, those assumptions turn into facts. Sometimes listening to each other in this environment, having had an opportunity to prepare for discussion on some difficult topics, allows you to hear something new in what you have already listened to.
- Being heard can be a fair trade-off for some compromise on the issues in dispute. It’s very satisfying seeing someone really get a point you’re trying to make – especially if you’ve been trying to make it for some time and it just wasn’t being received.
- Getting it is enlightening. And potentially humbling. But when you finally HEAR what is being said in the way it was intended – a point the other has been trying to make but either not saying well or just not saying it when you were receptive to hearing it – it can be empowering. It can free you up to focus on the issue versus focusing on the way you feel about the other person.
- Negotiating toward compromise says nothing about who is right. You’ve heard the saying: Do you want to be right or have peace in your life? There’s a lot to that. Proving you’re right takes a lot of energy. And what’s the payoff if you succeed? A moment to be savored? Served up with a side-dish of increased resentment from the one you need to work with to find a solution for disputed issues? Not helpful.
- “Fair” is it’s own reward. Taking the “right” out of the resolution – legally right, morally right, just plain right – and crafting something fair results in two winners.
Everything I formerly advocated about the mediation process for divorcing couples still holds true: you craft a better solution for your family than some judge who doesn’t know you can; you can get creative with the resolution in a way that the judge cannot; you have some control over the outcome as opposed to tossing the dice with the judge’s orders, you have an opportunity to be heard by the other in a way that you might not get in the courtroom.
But what I never said before – because I didn’t know it – was that going through the process was somewhat healing. And I don’t mean in a join-hands-kumbaya sort of way or a slap-on-the-forehead-arms-shoot-up-I-am-HEALED sort of way. I mean the knot in the stomach I entered the room with was gone, anger was dissipated, and both had been replaced by a sense of accomplishment. I left the room . . . satisfied.
I’m not telling you that Mediation is magic dust. It’s not something you can sprinkle on years of hurt, mistrust, betrayal, anger, or other raw emotions to make all the bad stuff disappear. I am telling you it’s a way to start a conversation that can have a different ending than others you’ve had before. And I’m telling you it’s an opportunity to be heard and craft a resolution for your family, and about your stuff, that is personalized in a way a judge just can’t accomplish. I’m telling you this process does not have the tear-each-other-to-shreds result that a trial can have. And I’m telling you, most important of all, that you can leave the mediation room with dignity intact, a desire to work together better for the children, and a sense of satisfaction having crafted a solution you believe works for your situation.
I can’t offer any solace regarding how you might feel leaving the courtroom if you choose to go to trial – because that’s an unknown.