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Mediate.com

Pinpointing the Disagreement

by Diane Cohen
April 2011

From Diane Cohen's Blog

Diane Cohen

When parties come to mediation, they usually do not know why they are having trouble with their conflict; if they did, they’d probably fix it themselves. In the course of the mediation, it is often the mediator’s job to notice the reasons that they are having trouble resolving the conflict on their own. One of the many reasons that might be present is that the parties are not able to pinpoint the specific areas of their disagreement. This may be because they do not know that pinpointing their disagreement will be helpful; because the process of pinpointing their disagreement requires a micro-focus that is outside the realm of experience for most people; because communication gets stymied by emotions either in the speaker or the listener or both; because one or both parties lacks the skills to articulate precisely; or for another reason. Regardless of the reason, the mediator can be extremely helpful in moving matters along if he or she is precise in pinpointing the disagreement. A recent custody and visitation case serves as a simple example.

In that case, the mother expressed the desire to be able to relocate anywhere in the United States. Although there was a great deal of antagonism in the discussion between the parties, the father did not disagree with the mother’s desire to be able to relocate; he expressed the belief that either one of them should be able to relocate freely. He understood that this would mean that his time with the child would be vastly reduced, but thought it was appropriate that they each be able to move. The mother wanted something in the agreement that stated that if there was a relocation, the visitation would change and to set forth what the alternative visitation would be. The father said that he wanted to wait until the time came and then figure it out. The mother wanted to be sure that nothing held her up and wanted to make sure everything was agreed to in advance.

I reflected at how they both felt they were at loggerheads, but that on any particular issue they didn’t necessarily disagree. All the parties could see was that the father didn’t want to come to the detailed agreement the mother wanted to come to: they saw it as a binary, a yes or a no. Ironically, they both saw the issue the same way. That’s because they saw the issue broadly. What they needed to do was pinpoint the issue. In my analysis, the issue was whether it was possible to come to any kind of agreement at present regarding the change in visitation in the event of a relocation. The mother was proposing a specific change and the father was rejecting that specific change, but perhaps there was another way to word things so that both parties could agree.

I summarized the mother’s point of view: that she wanted to have an agreement fully in place now so that she would not be held up when she wanted to move. At the same time, I summarized the father’s point of view that he wanted to wait until he had all the facts before deciding on a change in visitation. I then asked the father: I understand that you want to have all the facts before deciding on a change in visitation. Is that because whatever visitation you agree upon will depend on where in the country the mother moves? He confirmed that that was the case. A discussion ensued as to whether there was any kind of agreement that we could come to at present that would provide specific solutions in the event of a relocation. Ultimately, a resolution was reached.

It sounds so simple, yet the parties were unable to come to it themselves because when they each spoke and requested something, if the thing they were requesting was not 100% agreeable to the other party, the other party simply said “no” and an argument ensued. By helping the parties take the discussion to the next level and pinpoint the precise area of disagreement, I was able to work with the parties toward agreement even as their emotions remained high. In other cases, the emotions sometimes settle down after they realize that their issues can be addressed productively, or after they realize that it is to their benefit to work rationally rather than emotionally. But even when that is not possible, the mediator can use the rational skill of pinpointing areas of disagreement and addressing them to get past the difficulty.

Biography


Diane Cohen is a mediator in private practice and writes regularly on the process of mediation. Diane is an impasse mediator, and therefore mediates in all realms, but primarily in the family, divorce and workplace areas. Diane is a former co-president of the Family and Divorce Mediation Council of Greater New York. She has a J.D. from Columbia Law School, was certified as a community mediator by the Unified Court System in New York, and is a NYSDRA-certified mediator. She conducts workshops for mediators who want to work on their mediation skills.



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