Feb 2012 28

Actions speak louder than words.

But I fall for the words every time.  I listen too carefully to what people tell me, and then not carefully enough to what their actions tell me.

For those of us who aren’t hardened criminals, sociopaths and pathological liars, usually the disconnect between the words and the actions is unintentional.  I really meant to take out the trash and call my mother in law. I did!  I didn’t mean any disrespect by forgetting.

But the net result is that I forgot.

A typical way this plays out in the mediation session is the client who says they want to finish talking about a particular topic, or that they want to sign the agreement before they leave today’s session…..and then they can’t stop talking in circles, or they keep nit-picking all the details of the punctuation in the agreement, making it impossible to finish the discussion or sign the agreement.

If I paid more attention to the person’s actions, I might’ve been clued in sooner that they didn’t really want to stop talking about the topic or that they really weren’t ready to sign the agreement.  After all, talking in circles (after being reminded a couple of times and all attempts to redirect the conversation are ignored) and obsession over the final agreement when it’s already been read, revised, and read and revised again several times really shouts “I am not ready for this to be over.”

So when you’re faced with an impasse, think about the clients’ behavior.  Ask them what they think is going on. Ask them alone, in caucus, if you think your question might embarrass them.  Ask them, “What’s your worst fear?” because once they can put a name to their concern, you can talk about it and design an agreement that will prevent their worst fear from happening.

Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Perigee 2010). Join the conversation and community on our video blog and check out Diana’s divorce blog on the Huffington Post

Feb 2012 25

Asking For Permission.

It’s so basic, yet so powerful.

It’s like a magic wand—you ask for permission, and mediation participants will let you say or do almost anything and they won’t take offense.

So when I’m getting ready to float a creative but unconventional idea by the couple, I’ll ask, “I’ve got a kind of crazy idea, but I think it might actually work. Would you like to hear it?”

Or, “I’m really going out on the skinny branch here, but I can’t help but notice something that I think would really turn this mediation session around.  Do I have your permission to bring it up?”

This is contrasted with just jumping in with a suggestion or solution.  If you jump in without permission, you might succeed, and you might fail, but without the preface of “this might be sort of odd” and “is that okay?” you stand a much higher chance of offending the participants.

A side benefit to asking permission is that it models good behavior. Instead of just blurting something out, you’re asking for permission to say it.  For a couple that has been fighting, this is good role modeling. It’s got built in positive reinforcement, too, because almost everyone gives you permission to say what you have on your mind once you ask.

I’ve found that this is true even when I’ve had to preface a comment with “I’m a little concerned that you’ll be offended at this.  If you are, please let me know.”

Or, my favorite, “This next thing I’m going to say is what usually gets me fired.”  That line always gets a laugh…..but it’s true.  So I finally amended, “You need to get a job,” to “There are 2 ways to get more money:  spend less, or earn more.”  The second is actually a much more productive statement.  It gives the client a choice between peanut butter and jelly and getting a job.  It keeps the decisions in their hands.

But I still ask for permission.

Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Perigee 2010). Join the conversation and community on our video blog and check out Diana’s divorce blog on the Huffington Post

Feb 2012 23

The content to process shift is exactly that:  You stop talking about the content (the topic that’s got your mediation stalled) and start talking about the process (how you’re talking about the content).

So, for example, let’s say your mediation is stalled out over a discussion of spousal support.  That’s a pretty popular topic that people get stuck on.  Fighting ensues, and some accusations and name-calling.  The clients are even repeating themselves.  You’re getting nowhere.

So you make some wild hand gestures (because they’re not listening to you, of course) and get their attention.  You tell them that you don’t think the current discussion, the way it’s going, is productive. Generally, the clients will agree.

Then you ask them what they think would help make the discussion productive. Maybe they’d like to speak with you separately?  Table the issue and talk about it another time?

As you can see, you’ve stopped talking about spousal support. You’re talking about how to talk about spousal support.

There are 2 benefits to this approach:

1)  You stop the fighting and unproductive communication and disrupt the couple’s pattern.

2)  You engage the couple’s help in finding a solution to the arguing (not the topic–the arguing). After all, who knows best about what will work for them than they do?

Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Perigee 2010). Join the conversation and community on our video blog and check out Diana’s divorce blog on the Huffington Post

Feb 2012 21

I’ve been a full time mediator for over 12 years.

At some point, you become experienced enough in your profession that you don’t have to think about what you’re doing, or about following the rules.  You just know what to do, and you follow the rules without even thinking.

But recently I’ve found that breaking some of the rules actually works better.  I’ve been going out on a limb and it’s been working.

There are 2 keys to this “technique” (or non technique!) working:

1)  Ask for permission first. Once you get permission, people will let you do almost anything.

Example:  “I’d like to go out on a limb with what I say next, but I’m worried it may sound a little off-the-wall. Would it be okay if I go ahead and say what I’ve got in mind?”

Once you get a “yes,” you can say whatever you’d like.  Contrasted with not getting permission first—you risk offending people by not asking first.

2) If you’re deviating from your usual mediation process, make sure both parties are in agreement that it’s okay if you do things differently.

Example:  We recently had a case where I knew that if I didn’t bond with the husband in a more concrete way than you can do in a joint session in a mediation room that the case would be sunk.  I got the wife’s permission to meet him for coffee, and then a 2nd time for lunch.

I’d never done that before, but I knew that’s what needed to happen.  I was surprised that the wife agreed that this would be okay, but she was at the end of her rope, so she was probably willing to try anything. Plus this wasn’t at our first session—we all knew each other pretty well by the time I made the request.

At the lunch and coffee appointments, I didn’t talk with the husband about the case. I just found out more about who he is and his value system. I asked him about himself.  There was no pressure to talk about mediation or settlement.  I just used it as bonding time for us.

And it worked.

So I’d encourage you to go out on a limb, too, especially when your mediators’ toolbox seems to be empty and you can’t think of what to do next.

Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Perigee 2010). Join the conversation and community on our video blog and check out Diana’s divorce blog on the Huffington Post

Feb 2012 15

5 Myths about Premarital Agreements

Between news coverage, soap operas and family drama, we all have some preconceived notions about premarital agreements (also know as prenuptial agreements).  Here are a few of the most common myths, debunked:

Myth 1:  Prenuptial agreements are only for wealthy people, my fiancé and I are not rich and so we don’t need an agreement.

You may not be rich, but you definitely want to have a successful marriage. Having those honest discussions regarding how the two of you will approach finances will ensure that there won’t be any surprises once you are married.  You never want to actually need to enforce the premarital agreement, right? Talking about financial issues in advance will help insure that you handle your finances with minimal conflict during your marriage as well as in case of divorce.

Myth 2:  Prenuptial agreements are designed to simply protect the wealthier spouse and strip the other spouse of all of his or her rights.

Fact:  Prenuptial and premarital agreements should be designed to protect both spouses.  Premarital agreements which are unfair and completely one-sided are probably not enforceable in court.  By definition, the agreement must be fair.  The basic requirements for premarital agreements to be enforceable are:  signing the agreement must be voluntary, it can’t be unfair when it’s signed; each party needs to make a full disclosure of your assets and debts.

Premarital agreements can be designed so that everyone’s needs are met.

Example:  With a premarital agreement, you will know in advance how your assets and debts would be handled in the event you do not stay married. You’re negotiating the property settlement while you’re both in love with each other.  You would not be at the mercy of your spouse’s generosity or lack of generosity at the time of a divorce.

Myth 3:  Premarital Agreements Aren’t Romantic.

 Fact:    Jessica Simpson and Paul McCartney didn’t think they were romantic, either.  And, there’s nothing romantic about fighting about money once you’re married because you never discussed how you’d handle your finances, either.

Myth 4:  Premarital Agreements must deal with every issue that might come up in a divorce.

Fact:  You can include as many issues or as few issues as you wish. Because premarital agreements are private contracts, you can make them as detailed as you want.

Example:  If the only thing you want for your premarital agreement to accomplish is to protect your pre-marital property, you can limit your premarital agreement to that issue alone.

If the only thing you want for your premarital agreement to accomplish is to outline what would happen in the event of your death, in addition to a Will or a Trust, you can limit your premarital agreement to that issue alone.

If you want your premarital agreement to cover almost every issue that might come up in a divorce except one or two issues (like spousal support, or contributions to a pension during the marriage, for example), then you can have the agreement cover everything except the issues you want to exclude.

If you want your premarital agreement to cover every issue, you can do that, too.

Myth 5:  If we don’t get married, my live-in mate won’t have any claims to my income or property.

 Fact:  You could risk your income or assets by living together without marrying.

Palimony is a spousal support substitute for alimony or spousal support for people who are not married.  Palimony claims are difficult to prove, but that doesn’t stop some people from trying.

If you are going to live together without getting married, you’ll want a cohabitation agreement.  It’s better to decide who contributes to and owns property before you buy things rather than afterwards.

Conclusion:  The truth is that a carefully crafted premarital or prenuptial agreement can cement your relationship, prompt you to have the hard discussions that engaged couples need to have, and insure that your finances are handled the way you each intend in the event you were to divorce or pass away prematurely.

Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Perigee 2010). Join the conversation and community on our video blog and check out Diana’s divorce blog on the Huffington Post

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