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.  

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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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 …

A BAD DAY IN MEDIATION, IS BETTER THAN A GOOD DAY IN LITIGATION! 

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.