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

Whatever it Takes (Balloons): http://www.youtube.com/watch?v=boq8-dgTIOI
Aug 2011 12

There is a lot of fighting among mediators (nobody can fight like mediators!) as to what is “the” correct way to mediate.

Should you be directive, and tell clients what will probably happen in court anyway, and then muscle them into agreement?

Should you be facilitative, and let them have a free flowing discussion?

Should you be transformative, and guide the participants to a new level of understanding of their situation and role in the process?

Or all three?  How do you mediate for success?

I’ve never really tried to shoehorn Peace Talks or myself into a particular category. My style is that if participants are having a great discussion, it’s my job to get out of the way. If they need a nudge in the right direction, it’s my job to make a suggestion.

The process is designed around them, not just our Peace Talks Mediator Handbook.

I got a surprise, though, when a very nice set of clients came in a couple of months ago. They were amicable; they’d been married a long time and just wanted to be fair with each other.  We see that a lot at Peace Talks:  really nice people having the worst day of their life and just trying to do the right thing.

Where this case became different, though, is when the husband decided he needed to take a break from the proceedings and he laid down on the floor. Not to be derailed, I got him a blanket.

When he woke up (I’m pretty sure he fell asleep) he knew that what he needed to do to keep himself calm was to……blow up balloons and bat them around the room.

That was a first for me. And I thought in 23 years I’d seen it all. Maybe now I’ve seen it all, but who knows?

And I learned something that day, as I batted balloons around with him, my co-mediator (a very patient Stephanie Maloney, CDFA) and even his wife, who was also rolling with the punches.

I learned that:

  • Mediators need to be ready to do whatever it takes to help people settle a case, even if it’s outside their comfort zone
  • Mediators need to embrace participants who know what they need and aren’t too shy to ask for it.  We need to listen and let clients do what they need to do (within reason, of course)
  • Mediators need to loosen up their ideas of “the” right way to do mediation and adapt to the participants’ needs.

Of course, if the balloons and nap had made the wife uncomfortable we may have needed to take different action. But since it didn’t, we needed to step outside our own comfort zone and adapt to what the participants’ needed.

It’s not about us, it’s about them.

And they settled.

And yes,  got their permission to share their story in a confidential way.

Not sure you believe me? Watch the video!

Sep 2010 21

As a mediator, I feel like it’s really important to be honest and up front with people.  One of the truths of family law and divorce mediation is that there’s never enough money to go around.  Whatever the support order is, it’s too much to pay and too little to receive.  And it seems like this is how I get fired…….