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