The Limitations of Mediation/Martin Rosenfeld
There was a recent article at mediate.com (an excellent source of mediation information) entitled “Mediation:Why Haven’t We Come Further?”. Nine factors are outlined explaining why mediation has to face certain built-in brakes on its potential popularity with the general public. I too often think of this question regarding the limited role of divorce mediation. I will limit my analysis of mediation’s challenges to three factors. In no wise, however, do I agree with these three concerns, but I do think they exist in people’s minds, for better or worse.
1. Divorce mediation offers a couple a sensible and civil way of resolving issues and attaining closure through reasonable behavior. Some prefer reprisal and revenge to civility, even where the latter is more in their interest. How many people will argue that they are fighting over divorce issues as a matter of principle? Answer:Too many. Not everybody desires a resolution of their divorce issues. Some do prefer litigation to mediation, as strange as that seems.
2. We are conditioned to go to legal personnel when issues arise that have legal ramifications. There are still too many people who believe that a divorce process requires the “blessing” of an attorney. It is ironic that people with less education tend, in greater numbers, to try to go through their divorce as pro se parties. While legal advice is wholly appropriate for all, the idea of proceeding without an attorney to exclusively handle all aspects of the divorce is one that can be very constructive. (This topic is too broad for a discussion in this brief post.) By ceding control over one’s divorce to a non-mediating attorney, a party is depriving themself of a process that can be healing and civil.
3. I sometimes Google an issue in mediation, and find Goole asking me “Do you mean meditation?”. Litigation probably goes back to the dawn of manking. Mediation, as a school of thought, might be no more than thirty years old. It deserves better publicity, P.R. and advertising. Perhaps this will change in the years ahead. Many people are simply unaware of divorce mediation. But at least YOU know about mediation…
It is sad that divorce mediation is not utilized more often. If I had to make an analogy, I would pose the following question: which tastes better, junk food or nutritional food? But which is more conducive to good health? Sometimes, the disciplined approach is well worth the effort. Mediate, don’t litigate. If you make the wrong decision, you will not be giving yourself the best chance for a successful future. The present system of litigation in divorce, has little to show for its centuries of use. Give yourself the best chance of a successful future; mediate your divorce. You will not regret the decision.
Divorce Coaching
The field of coaching has taken hold in recent years as an alternative to traditional forms of therapy or counseling. Coaching programs abound and its graduates often practice, free of state scrutiny or licensing requirements. I advertise services as a Divorce Coach. However, I do not view my charge to simply talk with clients and ask them how their impending divorce “makes them feel.” I do not feel that attorneys or mediators who offer a coaching service need resort to platitudes or canned phrases to help their clients through a divorce. Rather, divorce coaching offers a client the chance to get reasonable feedback on how their divorce is progressing and the quality of the professional services they are receiving.
My preference for my clients is to see them employ divorce mediation for resolution of the matters being contested in their divorce. However, since you need two willing partners to have a proper mediation process, it is often the case that the mediation cannot take place. It is likely that divorce is often the result of a breakdown in communication between the spouses. It is not surprising therefore that if one person desires mediation, their partner will oppose it. My work as a coach is therefore aimed at the partner who was spurned in their attempt to mediate their dispute.
My work as a Divorce Coach can be done in person, preferably, or over the phone. I have 5 objectives in my Divorce Coaching. These objectives are universal in their application and can apply to all divorcing parties. They are outlined as follows:
1. A person getting coaching needs constant reminder that litigation is costly and traumatic. They need support in attempting to resolve their issues in the least hostile manner possible. They may need to discuss this with their Coach. They certainly need to be reminded to ascertain that their attorney subscribes to such a philosophy and is working accordingly.
2. Few people who are not attorneys will know how to evaluate the work of their attorney. A Coach can assist in helping the party decide what type of legal service they need and desire. In addition, the Coach can help the client determine if the professional service rendered by their attorney is effective, given their needs and goals.
3. A Coach will often know of services available to those going through divorce that are related to psychological well-being, economic well-being, and the well-being of the children (who are often most impacted by the divorce). Discussions on this topic can be of great value to the client and are to be encouraged.
4. A Coach can be available to a client for quick calls and for quick “pep talks”. This is not always possible with one’s therapist or counselor. The Coach should have expertise in the divorce process, something other professionals may not possess.
5. The Coach is available after the divorce process, as well. At the time the attorney bows out, post-divorce, lingering issues may still confront the client. A Coach can be very helpful in this regard.
A good Divorce Coach can be part legal advisor, part therapist, and part trusted friend. The exact relationship needs to be determined in each professional undertaking. The rewards of successful Coaching can greatly aid the client is preparing for the “rest of their life.” Divorce Coaching is worth your consideration if you are facing divorce. Make your choice wisely.
The Cult of Personality/Martin Rosenfeld
Articles appear currently, in ever-increasing number, trying to evaluate what is at the core of the drop in President Obama’s popularity. One theory that is intriguing is that the President has placed too much emphasis on his personality and his self-declared assets. Thus, for example, a reported of meeting of worried Democrats with the President led to a concern that the Carter era, where Democrats took great losses, might be repeating itself. The President’s reaction was :No need to fear, because you will have me campaigning for you. A President, it is suggested, does best when he makes his agenda the main focus of his presidency and not his personality or personal assets.
In divorce negotiations, it is probably near-impossible not to personalize the events that transpire. However, such activity will rarely lead to anything positive. Mediation places the focus on the needs of the parties. In a productive mediation, the parties will actually discover that they share many core needs. Most obvious would be the need to protect their children from a bitter and protracted divorce battle.
A focus on personalities will often yield to a Newtonian law: Every action will have an opposite and equal reaction. Put your emphasis on needs and goals rather than personalities, as you proceed through the divorce process. This is the tried-and-true way to get to Win-Win. Mediation works. Give it a try.
Pre-Nuptial Agreements
A Pre-Nuptial Agreement can appear to be unduly business-like and confrontational. As a divorce mediator, I try to make the document more marriage-friendly. I pay great attention to the wording of the paragraphs, its order, and the underlying sentiments. Two suggestions I make to clients, try to make the Pre-Nuptial more supportive of the hopes the couple bring to their marriage. I ask for a paragraph that commits the couple to seek professional assistance if the marriage experiences difficulties. Marriage is hard work.. The couple needs to plan how it will proceed if the relationship hits some rough spots. In addition, I ask the client to consider a paragraph that states that if issues arise that are legal in nature, the couple will seek mediation rather than proceed to litigation. Again the idea is to plant the thought that problems do arise in marriages, but there are appropriate ways to deal with this, short of terminating the relationship.
Mediators and attorneys are often the first professionals a young couple will meet, if they decide on a Pre-Nuptial agreement. Their role in strengthening the marital relationship is perhaps one of the most important tasks they will ever encounter. This is their moment to shine!
The Distinguished Senator From South Carolina?
The Democrats voted to nominate a gentleman named Alvin Green, to run for the Senate seat in South Carolina. Mr Green has apparent deficiencies in his character, experience, and overall disposition. Yet, he garnered thousands of votes and was declared the winner. How? Nobody seems to know, but his name did appear first on the ballot, suggest some analysts!
Things happen in life, at times, that simply defy logic. Life’s ride is sometimes bumpy. What does one do in such a situation? As the voters in South Carolina surely know, there are no “do-overs”. We simply have to “tough it out” and chalk up unusual experiences to the mysteries of life.
Many people who married for love only to fall out of love later on, cannot understand what life caused to befall them. There is little gained by over-analyzing some aspects of life. Things happen, for reasons we do not know. Divorces occur, marriages dissolve. Analysis is not always helpful. In such situations, we need to deal with the adversity with civility, decency, and propriety. Vindictiveness is of little use in such situations. If you wish to leave the door to the future fully open, leave your relationship with class and dignity. “Mediate don’t litigate” is probably a good phrase to embrace. The alternatives make little sense.
Is the President a Good Mediator?
A recent article referred to President Obama as a leader who tries to mediate disputes but denied him the description of leader. A leader takes charge, said this author, and that is not the president’s M.O. Assuming this is a correct analysis (which I do not) isn’t it a good choice to be a lifelong mediator?
As a mediator, I promote and believe in mediation. However, a mediator has a specific role. S/he works with people who have formed positions or who will be helped to clarify their positions. A mediator does not judge nor do they need to be burdened by taking sides. Quite the opposite. A mediator needs to be objective.
A leader, on the other hand, is an advocate for her/his people and must take positions. Mediators are not leaders. And leaders are not mediators. To blur those lines is to belittle the work of professional practitioners in both fields.
Obama’s Katrina
Frank Rich is a thoughtful and articulate columnist for the NY Times. It was therefore with some surprise that I read his recent piece entitled “Obama’s Katrina?”. He stated that the greatest damage dome by the BP oil spill might still not be apparent. This would be the damage to the reformist agenda of President Obama. It is hard to be a reformer if people challenge the competency of your administration.
Had Mr. Rich stopped there I would not be citing his column. But he goes further. A good deal further. He trashes President Bush, Vice-President Cheney, and a few other familiar names from the Bush II Presidency. The point seems to be it is not fair to see public rejection of President Obama when he is so much better than his predecessor.
I take no position on which President is more effective. They both have their foibles for which they must answer. What surprises me though is how a disaster of monumental proportions can be the backdrop to revisit the purported failures of President Bush. Whose life will be uplifted after reading this take on the Gulf spill?
Columnists do have their own agendas and they write about these. Fair enough. But where are the positive suggestions, words of comfort, or of hope? The answer is that you don’t necessarily expect columnists to be in the “hope business”. They cover politics as seen from their vantage point.
In negotiations, as well, parties discuss their positions as seen from their perspective. We don’t expect balanced reporting. But a litany of positions may not get one too far. A real negotiation must involve a discussion of mutual needs in a hope to find common ground. Mediators call this Win-Win. It sounds like a pipe dream but it works in actual practice. Trained mediators can turn divorce into a civil exercise and productive dialogue. Antone can litigate a matter if unintended harm to others is not a consideration. This does not work though when e.g. there are children in the picture. Mediate don’t litigate. Unlike Mr. Rich, if we search for productive results, we can’t remain on our soapbox. Honest conversation is rarely a bad idea. It lies at the essence of mediation.
Run Andrew Run
The New York Attorney General Andrew Cuomo has announced he will be running for Governor of New York. By most accounts, Mr. Cuomo has distinguished himself as NY Attorney General. However, the pol watchers are now asking the following question to Mr. Cuomo: “What is your agenda?”. Politicians are only as good as their most recent press clippings. A politician needs to decide why s/he is running and where the priorities lie.
In a negotiation, a party needs to know what is most important to them, what is least important and what resides in the middle of that spectrum. Not all issues are of equal importance. Not all desires are attainable. There needs to be interest, not merely positions, that are clearly defined and thoroughly considered for a negotiation to be meaningful.
How can one order their priorities? There is where the trained mediator is helpful. The mediator will help you define what is important and what is of little consequence. At times, the parties learn to their amazement that they can each get precisely what they want without disturbing the agenda of the other party. At other times, the negotiation needs to involve compromise, and a ‘give-and-take”. Either way, Win-Win is attainable. Unlike in the world of politics, we do not need to announce our goals at the beginning of a negotiation. The skilled mediator will help the parties, though, in sorting out their feelings and in using the negotiation to make wise choices. Mediation is not an infallible tool. It is simply better than any other method in helping us attain what is important to us. Mediation works. Try it.
Justice Kagan?
The Republicans are upset. Where is the record of Elana Kagan? You can’t be on the Supreme Court without being a judge, can you? Well, where was the judicial record of Justice Thomas when he was nominated for the same post? You get the point. It all depends on who is in control.
People say things that are often based on self-interest. Is that bad? Not really. That is life. But since we all know why people say and do certain things, weigh carefully what you are promised in a negotiation. If something is in a party’s self-interest they are likely to do it, if not, all bet’s are off. Weigh what the parties say, think of building a benefit or incentive for them to do it, and then make a proper decision. As the Bible states; “You shall choose life” or the best facsimile to it!
