Saturday, December 31, 2011

A Bad Day In Mediation is Better than a Good Day in Litigation, Part II

In my last blog post I wrote some reasons why I quip, “A bad day in mediation is better than a good day in litigation.”  There are exceptions to the rule.  There are cases which should not be resolved through mediation.  But largely, mediation clients report a higher rate of satisfaction with the outcome of their divorce.  A concrete example involves a couple I mediated for some time ago. 

We were just finalizing the last aspects of their divorce agreement.  Their negotiation, over a period of months, had gone relatively smoothly. Both parties were committed to fairness and civility in their divorce process, and both also wanted to keep the impact on their children as small as possible. Each was willing to compromise and help find ways to lessen negative impacts on the other.

On the other hand, their task of parting ways had not been easy, financially or emotionally. Namely, there wasn’t nearly enough money to support two separate households on a middle class standard. Nor did they have significant savings or retirement to share. This meant that both were facing an even more uncertain future.

As they parted ways, even acting as a team and working to try and stretch their budgets, each one was going to come up a bit short of what they really needed. The final negotiations were intense. Finally, after several hours of discussions and revisions, going over details and crunching numbers with a neutral financial analyst, a settlement was reached that everyone felt would be adequate and fair.

This settlement was probably the best, most fair, settlement anyone could have come up with. By enabling this couple to work together, and also using appropriate professional resources, mediation actually enabled this couple to achieve a much better settlement for both of them than would have been possible had they been in adversarial camps.   Eliminating the cost of contested litigation had saved tens of thousands of dollars, and then they were also able to work as a team to employ some tax planning and structure their settlement to maximize benefit overall.  So while the future may have looked sparse, it looked a lot better than the scorched earth they would have been facing if they had litigated rather than mediated.  

bombed-village-medium by Mia Farrow

All in all, it was a resounding success in terms of result. The agreement was reviewed, signed, and copied.  When I came back in the room, everyone was relieved that it was over. Including me. I was so happy that I made the comment that now we needed to have a glass of champagne.

Wrong thing to say.

I looked up, and one of the parties was blinking rapidly. I noticed a quivering lip and shaking hand. Clearly, losing their marriage, being reduced to a substantially lower standard of living, having to sell their home, and having their entire life narrative turned up on its end and shaken like a salt shaker, was not something they felt should be celebrated with a glass of champagne. This person told me in no uncertain terms that they didn’t think this was any kind of event to celebrate with champagne. And truly, how insensitive of me. I apologized.

Yet on the other hand, even if I said it in the wrong way, at the wrong place, and in the wrong time, there was still much to celebrate.  The parties had succeeded in separating their lives financially and soon-to-be legally. They achieved a property settlement anyone would think was fair. They arranged their finances so both spouses would have what they needed to get by, even if their budgets would be tight. They did not spent $40,000 on litigation. And they were still sitting in the same room together, able to cooperate and have a civil conversation, even agree on continued parenting arrangements and dovetailed estate plans. 

Although this ending was very different from how that spouse had previously dreamed or envisioned their life would be, it was so much better than could be achieved by way of the other divorce alternatives.

A bad day in mediation is, still, better than a good day in litigation!

Perhaps sometime in their future, they might consider raising a toast to the good years they had together, the children they continue to share, and a parting that was less damaging.  Who knows, perhaps someday they’ll even be able to raise a glass not only to their marriage, but also to a divorce process that enabled them to remain friends through the end.   By taking the high road and by seeking win-win solutions, this couple made their world and their future – even their broken world – a better place. That is worth serious applause. It is even worth celebrating.

I can’t take away the fact that divorce is sad and painful.  But it doesn’t have to be as bad as litigation can make it.  My goal is to enable my clients to rewrite the story of their marriage so that it has a happier ending.   A good day for me, is when that happens. Thankfully, and believe it or not, they happen often. That’s why I love my job.


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Saturday, December 17, 2011

A Bad Day in Mediation is Better Than a Good Day In Litigation! (Part 1)

Occasionally, things happen that remind me I am not perfect.  Today was one of those days.   At the dinner table one night recently, I made some snide comment about some celebrity personality featured in the news.  My daughter gave one of those exasperated replies, “Mom!”  When I looked at her with a questioning look she said, “You’re supposed to be a MEDIATOR!” 
The heart of mediation is to be able to help warring parties see the other side, to instill a bit of communication and compassion.  Obviously, I was not speaking in a way that would facilitate either communication or compassion.   Falling short.
Compassion.  Ah.  The challenge.  The challenge of putting myself into the other person’s experience, to be fully present for them, and to help them communicate and find ways of having their needs understood and met in situations involving conflict.  Fully present means to really listen, to really attend to what someone is saying.  Fully present means to see that party to a conflict as valuable for who they are, to hear and grasp the full meaning of their story and what they are trying to communicate.   For when communication is fully facilitated, most often people begin to understand more what the conflict is really about and then to be able to work together to find ways to meet the most basic needs of each.  Sometimes, it is truly just about numbers or just about compromise.  But most of the time, actually, the parties in my practice actually do engage in what we call “conflict transformation”. 
What is “conflict transformation,” you ask? 
By hearing each other fully, parties are enabled to transform the way they experience and respond to conflict.   When parties to a conflict are able to see and hear each other fully, and even to understand themselves better, they are often able to get beyond the superficial and the posturing, to address much deeper needs.  Often there really is a transformation – an “aha” moment --  that opens the floodgates of understanding, paves the way for change, and makes the idea merely of “compromise” or “settlement” seem trite.  The conflict can then be addressed at a much deeper, and more satisfying, level. 
Yes, the mediator is needed.  People can’t really get beyond it themselves. 
When communication has broken down between parties, when they are mired in their own un-articulated feelings and anxieties and needs. When anger is swirling like a cloud and past hurts invade memories like Trojan horse warriors, the presence of a mediator is essential.  Fully present for each person, I act as a bridge and as a facilitator. 
Yes, sometimes I fall short of that goal, as my daughter reminds me.  But even when it’s not perfect, when I fall short, I still think mediation is better than the alternatives!    
But remember how they say, “a bad day fishing is better than a good day at the office”?  Well, here’s another one:

A bad day in mediation is better than a good day in litigation! 

Have you ever been in litigation? 

To the participants, it’s extremely disempowering.  As soon as the case is turned over to the lawyer, the party loses control.  It’s not the lawyer’s fault, it’s because of the way the system operates.  Now that you are in litigation mode, everything you say could be misconstrued or used against you.  Therefore, all communication must be delegated to the lawyers. The lawyers decide how to use each piece of information to their strategic advantage.  The lawyers research and are governed by “the law,” which is really nothing more than a standard someone set as being fair in another case somewhere else, which may or may not bear close resemblance to your case.  There is no more opportunity for genuine communication, for healing, for working out truly win-win solutions.  The lawyers think in terms of solutions a court could impose, which are relatively limited.   Courts can order money damage and “specific performance” of some tasks, not much more.  Gone is the opportunity for solutions that come from the heart.  Not to mention, all of this lawyering costs money.  For each action of your lawyer, there is an opposite reaction from the other lawyer, and so on.  So costs escalate.  The lawyers love to score points by surprising the other side.  That doesn’t build relationships, either.   And then, there’s the worst part.  You don’t really know in advance what the judge will do.  Somebody will “win,” and somebody will “lose”.  Will it be you?  What will a total stranger decide about your case, based on a bit of information that passed through the gamesmanship called “rules of evidence”?   Could that lack of certainty be the reason people in litigation don’t sleep well at night, for months on end?  And when the gavel does fall, feelings are not resolved.  Instead, all that has happened is that the lid has been nailed down on the coffin of the conflict.  Feelings and needs have not been communicated.  Underlying needs and concerns have not been addressed.  But there is “resolution”.  People are not killing each other.  It’s better than nothing.  But still, I say …


sarah sunrise This winter sunrise photo was taken by my daughter.  The symbolism, for me, is that even on a bleak, cold, winter day, there is still beauty in a new sunrise, in a new opportunity, and a new beginning.

Friday, December 2, 2011

The Top 5 Regrets of People Who Are Dying

Blogger Bronnie Ware, who works with people who are dying, recently wrote a book called The Top Five Regrets of the Dying: A Life Transformed by the Dearly Departing.

THE TOP FIVE REGRETS OF THE DYING: A Life Transformed by the Dearly Departing

Ware’s memoir is a poignant reminder to all of us that we need to have a goal.  Namely, we should strive for the goal that at the end of our life, we will be able to say we have lived a life that focused on what is most dear and important to us.   After all, as the saying goes, “Days are long, but life is short.” 

Here is a shortened version of the list of regrets: 

1. I wish I'd had the courage to live a life true to myself, not the life others expected of me.

2. I wish I hadn’t worked so hard.

3. I wish I'd had the courage to express my feelings.

4. I wish I had stayed in touch with my friends.

5. I wish that I had let myself be happier.

This leads to a question.  To have no regrets in your own life at the end, how might you need to be living today?  Are there things that need to be changed to achieve your ultimate goals for your life? 

On a personal note, I’m glad I altered the trajectory of my life in order to live a life that was more in keeping with my values as a peacemaker.  Since hanging my solo shingle as a mediator and attorney, I am also very gratified for ways that I have enabled some of my clients to live their lives in ways that brought more peace to themselves and their families.  I’ve been able to do this in two primary ways. 

In Elder Law, I’m happy to have been able to help clients arrange their affairs so that essential life (and death) transitions are more peaceful.   I’m not happy when a client dies, of course, but it has been a comforting thought to me when I’ve known that a client’s affairs were well ordered and that no terrible messes awaited their bereaved family members. 

In Family Law, I’ve been able to help families – especially divorcing couples -- rearrange their relationships so that endings are happier.  Sometimes that takes the form of a child being adopted into their “forever home,” while other times that takes the form of helping divorcing parents forge a separation agreement that will help them cooperate as parents even after they are no longer married to one another.   And even in cases where there are no children involved, I feel that mediation of divorce has enabled clients to get through a terrible life crisis with less trauma. 

It took me years and years to gather the courage to buck the mainstream and forge a path as a peacemaking attorney.  And still, I am outside the mainstream of legal practice.  It has been challenging for me, personally, to navigate a path where few have gone before, outside the mainstream of the adversarial role traditionally expected of attorneys.  When I was young, I lacked self confidence to crash through into a totally uncharted and new field of mediation.  I heard about mediation and became passionate about the theory of conflict transformation when I was in my early ‘20’s.  However, I listened to so many other voices telling me it was impossible to be a mediator.  

When I was first out of law school, in the early 1980’s, mediation was a brand new concept.  No lawyer I worked with had ever heard of mediation.  My mentors told me it would be impossible to forge a career as a mediator:  the ethical hurdles for attorneys were quite high (due to the duty of zealous advocacy and dangers from waiver of attorney client privilege); clients would never pay for mediation; it’s just not how things are done; people need a zealous advocate to ensure that their rights are asserted.   I listened to the voices of people who, though surely wiser than myself, were speaking a narrative that was more true for them in their time than for me in my time.  Gathering the courage to break out of the adversarial legal paradigm was an important stride that took me more than two more decades to achieve. 

My peacemaking practice is still out of the mainstream.  In fact, it’s absolutely not politically correct to admit to being a peacemaker.  It’s not just that ideas like peacemaking and conflict transformation are too touchy feely.  There are still attorneys who openly scoff at the idea even of facilitative mediation.   Just last week, one responded to a tweet of mine (promoting dialogue among conflicted parties) with the retort, “Conflict enables dialogue like syphilis enables penicillin.” 

I’m happy that I can now have my own peace in saying that mediation is definitely not appropriate for everyone.   Offering mediation to someone who ridicules the concept of finding peace is like casting pearls before swine.   But for those individuals who earnestly do seek peace, mediation can be a blessing and a godsend. 

Guidance from a peacemaker offers hope of transformation of conflict into opportunity for increased understanding and cooperation.  And when that happens, I am the fortunate one who is blessed to become an instrument of that peace:  a gift that happens sometimes, somehow, and through some measure of Grace given to me by virtue of training, talent, and trust from my clients. 

In the sense of now walking a path more true to my calling, even if it is outside the mainstream, I am really glad that I took a turn in life to follow this calling. 

Among the things that dying people regret, bucking the mainstream is just item number one on this list.  There are also four more!  As we enter the end of 2011 and look forward to the upcoming year, I propose that each of us look at this list  and think how each of us can arrange our lives to feel as good as possible about how we have spent our lives, when we reach the end of our days.  

A link to Ware’s blog post about her book is HERE.


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