On almost a daily basis, someone calls my office for a consultation and advises me that they can’t mediate their matter because they are in conflict with each other, don’t communicate well with each other, don’t trust each other, or have already failed to work things out on their own.
I’ve become numb to such a response because they are essentially talking themselves out of a process and approach designed specifically to address such things. Instead, they’re saying the following: (1) since we’re in conflict with each other, we need to utilize an adversarial process, which tends to further escalate whatever conflict already existed; (2) since we have problems communicating with each other, we need to utilize an adversarial process which tends to exacerbate those problems; (3) since we have trust issues with each other, we need to utilize a process which tends to breed paranoia; and (4) since we failed to work things out on our own, rather than engaging someone to assist us is resolving the dispute, we’ll lawyer up for battle.
The following is an excerpt from an article titled Mediation: Negotiating a More Satisfactory Divorce that was published by Harvard Law School's Program on Negotiation on July 4, 2017 and is based upon the results of a study that was published in 2012:
“Study participants whose mediator or lawyer took a facilitative approach to the negotiation, as measured by their tendency to engage in problem solving behaviors and help their clients focus on interests, generally reported high-quality outcomes....
A facilitative approach [involves] trying to de-escalate conflict and improve the quality of the relationship between the divorcing spouses....
In a facilitative mediation, the mediator focuses on helping parties carry out a smooth, open conversation....
As compared with those engaged in litigation, participants who engaged in mediation reported that they reached higher quality agreements, as measured by how tailored, fair, comprehensive, and clear the agreement was....
Overall, the results suggest that couples would be wise to be aided by professionals who believe that reducing conflict and encouraging an open dialogue are more likely to promote a satisfactory divorce than a straightforward competitive approach would.”
It bears mentioning that the 2012 study upon which that article was based was one of at least nine studies, all of which came to the same conclusion.
Notice that the facilitative approach is compared to litigation, which is described as a competitive approach. The article also mentioned the possibility that “those who chose mediation entered with a less combative attitude than those who chose litigation.”
In other words, as I titled an article published in HuffPost on April 14, 2016, Cooperation or Combat? The Choice Is Yours!.
As far as trust issues are concerned, Harvard Law School’s Program on Negotiation addressed that issue in an article titled In Conflict Resolution, Look for Trusted Partners that was published on December 20, 2016. The article provides in pertinent part as follows:
“How can you engage in conflict management with someone who doesn’t trust you? Consider bringing in someone the other party does trust to mediate the dispute....
Enlist those the other party trusts.... Look for people you and your counterpart both trust to mediate your dispute.”
The aspect of trust cannot be understated. In fact, on July 21, 2017, one of the parties to a business dispute I mediated advised me that the settlement agreement had been signed by everyone. He thanked me for saving the deal by putting things into perspective and reality testing after it appeared as though it was going to fall apart. He also advised me that the other party trusts few people and that they both trusted me.
In Examples of Alternative Dispute Resolution (ADR): How Mediation Works, Harvard Law School’s Program on Negotiation says the following with regard to situations in which disputants have failed to work things out on their own:
“Negotiations have reached an impasse, but both sides agree on one thing: you need help resolving the dispute. You engage a neutral mediator to do just that. Rather than acting as a judge who decides who ‘wins’ or ‘loses,’ a third-party mediator assists parties in reaching an agreement.”
Another article published by Harvard Law School's Program on Negotiation on July 6, 2017 titled Three Questions to Ask About the Dispute Resolution Process explains the benefits of mediation over other processes as follows:
“Mediation is typically faster and cheaper than arbitration or litigation, and mediation also gives parties the greatest degree of control over the final outcome….
Frank E. A. Sander and Lukasz Rozdeiczer advise you to start off with mediation, as it is a safe, non-binding procedure for both sides….
Sander and Rozdeiczer’s advice, from a chapter in The Handbook of Dispute Resolution, the winner of the National Institute for Advanced Conflict Resolution’s 2005 Book Award, is to keep in mind that both sides to a dispute often prefer a settlement to an arbitrator, judge, or jury’s binding win-lose decision….
When parties are having trouble communicating and have a strong desire to air their feelings, mediation is often the best choice….
However, when parties have different opinions regarding the law affecting their case, a judge or arbitrator’s expertise ultimately may be needed.
When in doubt, mediate. In sum, the low-risk, relatively low-cost nature of mediation makes it the ‘go-to’ dispute-resolution process.
Mediation allows negotiators to work together toward maximizing their outcomes under the guidance of an expert, rather than handing over their dilemma for someone else to resolve on their behalf….
If a mediator is unable to help you and the other side reach agreement, you may still need to turn to litigation or arbitration, but you will do so with a better understanding of your case and the issues at stake.”
Since so many people, lawyers and retired judges included, call themselves mediators these days, Harvard Law School’s Program on Negotiation addressed that issue in an article titled What Makes a Good Mediator?, which was published on July 11, 2017. The article states in pertinent part as follows:
“What makes a good mediator? And how is it that mediators—who themselves lack any power to impose a solution—nevertheless often lead bitter disputants to agreement?
Of course, serious mediation training and substantive expertise are critical, as is keen analytic skill. But according to a survey by Northwestern University law professor Stephen Goldberg, veteran mediators believe that establishing rapport is more important to effective mediation than employing specific mediation techniques and tactics.”
As far as substantive expertise is concerned, Harvard Law School’s Program on Negotiation addressed that issue in an article titled Is Mediation Expertise What You Need? that was published on May 31, 2016. That article answers that question as follows:
“You can be forgiven for thinking that, when it comes to dispute resolution, technical expertise trumps mediation expertise. This reasoning is faulty.
It’s often the case that when two people or organizations try to resolve a dispute by determining who is right, they get stuck. That’s why so many disputes end up in litigation.”
The reason was thoroughly explained in Negotiation Research on Mediation Techniques: Focus on Interests, which was published by Harvard Law School's Program on Negotiation on July 6, 2017, which stated in pertinent part as follows:
"There is a better way to resolve your dispute: by hiring an expert mediator with a focus on interests – the needs, desires, or concerns that underlie each side’s positions, according to negotiation research on mediation techniques.
During the course of dispute resolution, if someone is asked why a dispute is important, normally the answer will reveal her interests....
Can a focus on interests be applied to complex business disputes?
From experience we know that a skilled mediator can often resolve conflicts even when she knows little or nothing about the underlying technical issues behind the most complex disputes.
Why?
In the first place, a good interests-based mediator will be a fast learner, capable of quickly picking up the technical mediation knowledge necessary to discuss the problem.
More importantly, an interests-based mediator doesn’t need to fully understand the technical aspects of a problem to assess why the dispute is important to each party and which solutions each party might accept.
By beginning with this knowledge and eventually exchanging negotiated agreement proposals, the interests-based mediator can help parties resolve the most complex technical problems."
In 2016, I was asked to share tips for an article on How to Prepare for Divorce. My tips were as follows:
“1. Don’t assume that your divorce case cannot be handled through the mediation or collaborative divorce process because the two of you aren’t amicable and have trust issues.
Well-trained mediators and collaborative divorce practitioners have acquired skills to de-escalate conflicts and rebuild trust.
Litigation is an adversarial (combative) process that inherently escalates conflict and breeds paranoia and litigators haven’t typically learned the skills taught to mediators and collaborative law practitioners.
2. Don’t consult with or retain a litigator, unless they also happen to be a well-trained facilitative and/or transformative mediator and/or a collaborative divorce practitioner.
Otherwise, it’s like going to a surgeon and expecting them not to recommend, or at least be biased toward surgery. You can only give what you have and teach what you know.
3. Don’t assume that your spouse won’t be amenable to the mediation or collaborative divorce process, even if they have already retained litigation counsel and possibly served you with adversarial pleadings.
People convince themselves that their spouse wouldn't agree to something about which they never even asked. Ask and you may receive.
Let me rephrase that as follows: You can’t expect to receive that which you didn’t request.”
For what it’s worth, regardless of what I say and what type of information I provide, I rarely hear back from those individuals whose responses numbed me long ago. As they say, “You can lead a horse to water, but you can’t make him drink.”