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 13

How do I interview a mediator?

  • So you’ve identified a mediator you’d like to meet. What questions do you ask? What credentials are you looking for?
  • It’s really important to ask what percentage of his or her practice is mediation.  Mediation is a really specific skill, and it takes practice to get really good at it, just like everything else.  If mediation is only a small percentage of that person’s practice, he or she might not be seasoned enough to be effective.
  • Ask “what’s your style of mediation?”  some mediators talk about legal information, and others don’t.  Some mediators will make suggestions, and others won’t. So ask.
  • Make sure the mediator has experience in what’s important to you.  If you have a small business, has the mediator worked with small business owners before?  If you have a complicated child custody situation, what kind of experience does the mediator have with parenting plans?

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

May 2011 24

Forrest “Woody” Mosten is a master mediator and, I’m convinced, one of the top mediation trainers in the world.  He is really at his best when he is teaching and training. His passion for both really shine through.

Woody casts a wide net with his mediation training, and he teaches and speaks at conferences all over the world.

In this short tour of his office, he talks about a training he did in Germany for mediators from all over Europe, and all over the world.

I go to a LOT of mediation trainings and conferences, and occasionally I even train mediators myself.  It’s never a dull moment when Woody Mosten is presenting, and he always has challenging and thought provoking ideas. You can check his schedule here: Mosten Mediation.

Speaking of challenging and thought provoking ideas, my other favorite trainer and speaker is Robert Benjamin.

I get a lot of requests for “what’s the best training?”  If you’re in Los Angeles, here’s what I suggest:

40 Hour Mediation Courses

Forrest “Woody” Mosten’s course is the gold standard.  But it’s not cheap ($1500).  But I’ve been to mediation courses all over the country and his is the best.

His Study Groups are excellent.  They meet about once a month and cost $75 (CEU credit is given).   I attend myself when I’m available. Highly recommended.

Loyola Law School offers a mediation training course for $675.  I have not taken it but it’s taught by Mary Culbert, a very experienced teacher and mediator.

Lee Jay Berman offers training through his American Institute of Mediation. I suspect his classes are very good—he has certainly been at it long enough.

Pepperdine offers a range of highly regarded classes:   The conferences aren’t a 40 hour training, but I suspect that you’d learn enough to be able to get started mediating.

There’s also a certificate program at Cal State Northridge:  I haven’t heard of anyone who’s been through it, but I’d be curious to see what they’re up to.

Peace Talks has a 25 hour course on DVD (condensed from a 40 hour course).  It’s great for what it is, and I’m the teacher, but given that we’re in Los Angeles, you really ought to get an in person training so you can get the hands-on experience. It would be different if you were in some remote rural area that offered no training.

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