These are my notes and quotes from A Guide to Divorce Mediation by Gary J. Friedman. I wrote my key takeaways from the book for the subscribers of my Future of Conflict series.
His transition from litigator to mediator:
Another thing that disturbed me about the litigator’s life was the high value placed on negative human qualities. Fear of losing face, of just plain losing, or of being sued by the client often seemed to be at least as powerful and motivator as the search for justice. But even worse, aggression, defensiveness, and blame were the main currency I dealt with as a lawyer, both in the way I approached opposing lawyers and in my interactions with my clients. And truth – which in my personal life, I value above all – was often considered irrelevant.
I find this ironic because Truth, which I also value very highly, doesn’t seem to be super relevant in mediation either. Each party has their own version of the story, and facilitating an agreement and inner transformation are both more likely than getting to a shared narrative of “what happened”.
One of the key reasons for mediation is that decisions the parties come up with themselves tend to be more durable. Gary points out the parties are also the only experts in their own lives:
Increasingly, I came to believe that it was essential for my clients to make their own decisions in resolving their disputes. The decisions called for were far too central to their lives to permit a settlement imposed from the outside, extending far beyond the professional’s expertise into the deepest reaches of the clients’ private lives. I began to sense that if people were given the room and support—no small feat, as it turns out, for me or for them—they could do it themselves based on their own personal sense of justice.
Importance of process as well as content:
For me to be willing to mediate with them … couples would have to agree to try to work together to make their own mutually acceptable decisions. Many approaches to mediation focus exclusively on the settlement terms, but for me, how the settlement is reached is as important as the settlement itself.
Why mediation is so hard to teach:
The difficulty in explaining the essence of the process has to do with the nature of human conflict itself. All disputes, from sibling rivalry to wars between nations, are matters of human relationship, and all human relationships, when one looks closely at what they comprise, are almost unbelievably complex.
The problem you came with is downstream of your real problem:
Although most people who come to me for mediation usually have legal and economic matters uppermost in their minds, they eventually reach an agreement only by digging below the surface issues such as spousal support and co-parenting to confront and change their relationship.
The significance of mediation as an alternative method of resolving conflict lies in the process of examining, clarifying, and adjusting human relationships in all their intricacy and emotional depth.
Mediation is not just a different negotiation strategy. It works because of its transformative power:
it is a careful, sensitive paring away of layer after layer of experience. It cuts through stances of posturing, threatening, cajoling, and blaming to the underlying issues of disappointment, pain, hope, aspiration, and fairness. Ideally, the result for both participants is a deeper understanding of themselves and the other, and of the fundamental human relationship between them.
The potential upside in facing what happened:
Our normal tendency is to want to forget about the past, sever ties, and move on. Yet people who are willing to face what has happened between them and to speak honestly to each other about it, while also addressing what they want for the future, have the chance to reach a settlement that has integrity. That is the challenge and opportunity that this process presents.
Personal criteria for success:
There are four inter-related criteria that are indispensable to mediating successfully. If you both meet them, you should be able to go forward with prospects for success. But each of you needs to meet all four:
- The motivation to mediate
- Self-responsibility
- The willingness to disagree
- The willingness to agree
When he intervenes:
There are two circumstances in which I assert my opinion: if you are about to reach an agreement that is so unfair I could not in good conscience write it up, or if you are about to make an agreement that a court would deem illegal.
For example, in one instance, Betty was preparing to agree to give up spousal support without having the faintest idea how she would meet her expenses from the income of her business, and she would not deal with my repeated attempts to get her to articulate how she could get by, instead simply insisting that she wanted an end to the process. I ultimately registered my concern and refused to draw up the agreement. I reminded Betty and Ralph what I explain to all couples at the start:
“The ultimate decision belongs to you, and I will defer to you unless the decision so completely conflicts with my sense of fairness that I am simply unable to accept it. This reaction wouldn’t prevent you from writing up the agreement on your own, however, or hiring another mediator to draft the agreement. But I would make clear to you my concern and why I viewed it the way I did. I have to tell you, I have reached that point.”
Is there room for both parties to be right?
For example, if you tried to convince your spouse that you were right and he or she was wrong, you were, in effect, behaving as if only one of you could be right. On the other hand, maybe your spouse simply gave in. Or perhaps one or both of you tried to avoid dealing with the conflict by pretending it didn’t exist.
All three responses are typical adversary-type interactions.
These are not bad, but they are limited in their ability to solve problems. In fact, in conflict, most couples develop patterns of interaction that have the effect of prolonging, exacerbating, or sidestepping the conflict rather than resolving it.
How you end one relationship can have profound effects on how you remember it, and how you enter the next relationship:
Couples who manage to break old communication patterns can achieve a level of understanding they have never had before. It’s in this way that sudden, dramatic shifts can occur to break a years-long stalemate. Not infrequently I see spouses become willing and able to deal with each other in their divorce in a way that was impossible in the marriage. This may have a bittersweet quality, but it is almost always a significant experience for those who attempt it, and can have an enormous healing effect. Providing the opportunity for couples to have this experience is one of my sources of personal satisfaction.
The role of depth:
Although there’s often resistance, the deeper mediation goes the more options are expressed and the more solid is the base upon which solutions will rest. And the depth of the process depends, I think, on the mediator’s ability to understand the conflict without encouraging the parties to compromise their positions. Still, his or her ability to do that will not guarantee that the disputants will be able to do the same.
In mediation, the law does not dictate how decisions are made. The participants choose their decision making criteria.
On what basis or according to what criteria should the decisions be made? Possible bases for decisions are the following:
- The law and its underlying principles
- Each individual’s own sense of fairness
- The identified needs and interests of all concerned
- The relationship between the mediating couple
- Any prior agreements between the two
- Personal criteria with special significance for the couple, such as religious or community beliefs and standards
- Practical and economic realities
Ankur Shah Delight: Community and Conflict 