Mediation

5. Mediation Essentials — Opportunity to Tell Your Side of the Story

One of the beauties of mediation is its flexibility. There are no rules of evidence or rules of procedure. The rules that are emphasized are basic human civility and politeness. You will be encouraged to express anger, for example, but there is a low tolerance for name-calling or profanity.

A virtually universal rule in mediation is that no one is to be interrupted while speaking and the participants are not to “talk over” each other. Most mediators handle this by making it clear that each participant will be given time to tell his or her version of the story, if necessary, until the cows come home.

Giving each party the opportunity to tell his or her story fully is a method for attacking a dispute on two different levels. On an analytical, intellectual level, forcing the parties to listen to each other provides an opportunity to clarify and “sort out” their concrete, factual differences. On an emotional, psychological level, being allowed to tell your side of the story often changes perspectives in a variety of ways. For example, the feeling that you are finally being heard can dramatically empower and release someone frozen-in-place by a sense of helplessness, allowing that person to feel that they can now make decisions without feeling victimized. Another example: Sometimes when a domineering, controlling spouse observes others, sincerely listening and reacting to his or her spouse’s legitimate, moving complaints, it can be a terrifying experience. What if a judge or a jury reacts the same way to his or her spouse’s story? Maybe it’s time to stop “stonewalling” and discuss a settlement, before a court hears this story and reacts the same way. Of course, not all emotional reactions are positive. Hearing a spouse’s angry story can be like throwing gasoline on a fire. Mediation, for all of its positive results, can sometimes worsen a dispute or reinforce the conviction that settlement is not possible.

We are all familiar with the analytical, intellectual nature of disputes. From childhood, it’s the way we think of our disagreements. If you and I are dividing two pieces of pie and two pieces of cake, you may be unhappy and offended that I have chosen the biggest piece of pie for myself. Of course, I will admit to having a thing for pie, but I will quickly point out that you previously selected the larger piece of cake for yourself. You will then certainly remind me that you selected that piece of cake only after I had previously taken the cake with the most icing. And so goes the dispute resolution process, with each side factually, analytically discussing merits, values, fairness, and, no doubt, the rules of the road for cake and pie dividing. Resolving disputes over bank accounts, apartment buildings, oil wells, child support, and time to be spent with children is infinitely more complex than two children dividing a seemingly limited supply of pie and cake. But the methodology is the same. It’s strictly an intellectual and analytical process. Or is it?

In fact, disputes are seldom all intellectual and analytical. In human life, little outside of nuclear physics or mathematics is purely analytical. And if you listen to some of the disputes among mathematicians and physicists, you have to wonder whether even those lofty areas are exempt from emotions.

To be fair, many divorces are resolved by spouses who refuse to be controlled by hurt feelings and anger and who decide, intellectually and deliberately, who will get what. Believe it or not, there are even those divorces in which, out of respect for a marriage that has been an important part of their lives, both spouses are willing to give the other party more than a court would require. Of course, since these cases with two civilized, sensible, practical divorcing spouses don’t make much noise or create much of a show, few people even notice.

But in difficult divorces, typically the emotional aspects play a significant role. Emotional reversal is at the heart of the divorce process. Marriage, by its very nature, entails huge emotional commitments. I don’t just mean the religious or formal vows that we usually think of as the marriage commitment. I also mean the “accidental” or de facto commitments. Marriage usually means sleeping and eating together, sharing bathrooms and owning the same furniture, dreaming the same dreams and having the same house key, not to mention the nine-hundred-pound gorilla of all emotional ties, having the same children. Divorce, of course, is an abrupt attempt to draw boundaries through what has become a way of life. In short, most marriages are like an iceberg. We see the children, the house, the furniture, the car, the bank accounts, and debts that must be divided. What is not “visible” is the largest part—the emotional ties, both positive and negative, that come with two people utterly mixing their lives together over several years. Most difficult divorces are about this emotional nine-tenths of the “iceberg” that is under water.

You might imagine that when mediation provides a forum for an emotionally charged divorcing spouse to tell his or her story, the result would be more akin to a therapy session than a legal proceeding. To some extent this is true. But it resembles “therapy” more in result than in form. At least occasionally, a spouse’s attitude is completely transformed after “getting it all off the chest” by speaking his or her piece. But mediation does not resemble a session with a psychologist in the sense of dragging on for hours, days, or years.

It is surprising, given the fact that this right-to-tell-your-story is such a central part of the mediation process, how little time it usually takes for participants to each have his or her say. This part of the mediation is usually over in a few minutes. This is because the participants, including even those most intent on speaking, know that, at bottom, the stated purpose of mediation is to settle the case and not just to make speeches. Since participants are not allowed to argue, but merely respond with their own opinions about what someone else may have said, this also shortens the process by interrupting the “ritual fighting” that the couple may have engaged in over the years. Often a party participant to mediation won’t speak at all, simply allowing his or her attorney’s summarization to stand as his or her position. Although lawyers may sometimes encourage their clients to speak freely at mediation, on other occasions, an attorney may instruct a client just to listen and not say much or not to speak at all. A final reason for the brevity of party statements is the very limited time that the typical mediation format provides face-to-face contact.

Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 14, pp. 207-210.