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A recent telephone conversation, with a woman who called to discuss divorce mediation despite her basic fears, prompts this article which I hope will interest anyone who negotiates. She voiced a list of worries.
One. “I am afraid my interests won’t be represented. I will have no one in the room with me to back me up.”
Two. “Yet when I talked with a lawyer he completely overreacted. He wanted to sue my husband and be very aggressive. We don’t want that at all.”
Three. “Divorce has its own culture of contentiousness. It’s as if all my friends hear that I am getting divorced and they are telling me I have to fight with my husband. We don’t want that at all. We have good will towards one another.”
Four. “Yet I am afraid that my husband will get mad at me for asking for something and I will back down.”
Five. “We have been separated for two years and are cooperating well around our children. Yet when I decided to move out I was told that I’m screwed in the divorce because I was the one who left.”
There are many responses available to the listening mediator. How much time does one spend on the phone with one spouse before even meeting them? Do you compromise your neutrality if you spend half an hour with this woman and not talk on the phone with the husband before they come to your office? What if you have already talked to the husband and encouraged him to tell his wife to call? After talking to the husband would you ever telephone or email the wife if she did not call you? How do you reassure her about having left?
There are, of course, advantages and disadvantages to any answer to those questions. The listening mediator decides what (s)he feels will help the mediation, which usually means listening a lot to the wife and then trying to answer her questions as directly and simply as possible. The first phone call is your first chance to connect with her, and once you have connected something good may happen, if she comes in with her husband to meet with you and they hire you to mediate their divorce. (The last thing you want to do is call a person who has not called you first, so it is up to her to bring in her husband, not you.)
“I am afraid…”
She said it twice. What a gift for the mediator, to be told by the client what is going on for her. In his insightful article for Mediation Quarterly, Fall 1988 called “John and Mary: Sharing Parenting After Divorce,” John Haynes describes why he begins the mediation of a transcontinental kidnapping case by asking each parent to define the worst possible outcome in working with him:
“…I wanted to find out what it was they feared the most.
My experience in cases such as this is that couples are
driven to mediation by fear: fear of the alternatives and
fear that the worst possible outcome will materialize in
alternative arenas. I believe that if these fears can surface
and be negotiated early in the process, then the parties can
concentrate not on defending against their fears but on
solving the immediate problem.”
One way to connect with her is to acknowledge her fear. Here I was struck by how much she had already figured out, and asked her how she had come to realize what was troubling her: she would feel alone in the mediation room. “What are my concerns?” she had asked herself, an all time GREAT question. Try it some time. Morton Deutsch writes about what he calls “intra-psychic conflict” in The Resolution of Conflict, Yale University Press (1973), p. 33:
“Inner conflict is an experience no one can avoid. It occurs in relation
to such temptations as eating a piece of Nesselrode pie rather than
staying on one’s low calorie diet as well as in such major decisions as
whether to resist or submit to an unjust authority. It is experienced as
one attempts to juggle the conflicting responsibilities of various social
roles: father, husband, teacher, scholar, citizen and so forth.”
Mediation is fascinating because so many of us do the same thing in different ways as the mediator finds her or his own voice, what seems to work well for him or her, what feels natural and right. I like to ask couples early in the process, “What are your concerns?” and I have found two archetypal and totally gender based responses. The woman says, “I don’t want to be a bag lady. I don’t want to be on the street. I want security.” The Chinese character for “security” looks like this: ??. My Chinese speaking son says that is a composite of two symbols: a roof and a woman under it. I love telling the couple that for 6,000 years the Chinese say security is a woman under a roof. Almost never does the man say he wants security. The man’s concern is his freedom: “How long do I have to pay alimony? When am I off the hook?” His fear is that he is forever enslaved.
Fear is energizing and also paralyzing, depending on who we are and how we respond to it. Some confront, and others avoid. Some, to quote a recent wife, say, “I avoid talking about money at all costs.” A couple came to me and she began by saying for three years she had avoided discussing their conflict because she was afraid she would lose the house. Her husband was astonished and said, “You can have the house. I don’t want it.” She gave a small scream and started sobbing. For her, the mediation process became liberating. The mediator’s solution to everything is to talk about it, and by giving people a place to talk we give them a safe place to confront their fears and to liberate themselves. Then they have to decide what to do.
What Do I Want?
But the problem with negotiating is we don’t always know what we want. We don’t spend the time and hard lonely work walking in the wilderness to figure it out. People who ask themselves about their own concerns are will be on the right track, and may be astonished at some answers.
Until you know what you want, any negotiation is dangerous. My wife wonders how one answers the question, and suggests therapy may help a client focus: “What is most important to me? What do I care about the most? Why?” In addition to therapeutic insight, divorcing clients benefit from living apart for at least six months. In a course I took years ago at the Boston Psychoanalytic Institute about the psychology of divorce, neither the teachers (psychiatrist Dan Jacobs and Judge Sheila McGovern) nor the students (lawyers and therapists) could agree on anything except: it is easier to work with clients who have been living apart for at least six months rather than those still living together or only recently separated. After six months they have experience with what works and what does not and are beginning to figure out their own priorities.
For a lovely answer to the “how?” question google Mary Oliver’s poem The Journey. Years ago a divorcing husband gave it to me; I still carry it and still hand it out to clients who are grappling with their own fears and searching for their own inner guidance. Deciding what one wants is an amazing journey to watch. Listen to two therapists in my office discussing their own divorce:
Husband, exasperated: “Why does it take you so long to make a decision?”
Wife: “I have to consult with My Committee.”
Husband: “Who the hell is that?”
Wife, putting her fingertips on her stomach, “I have all these voices.”
So I am constantly slowing people down and telling them, “Don’t agree to anything until you are sure it is right for you.” Or, when one of them appears will to commit to something that may be generous or beyond norms, “Why are you willing to agree to that?” The answer is usually commendable and reassuring, and free of fear.
It’s also about readiness. When people are ready to agree they will agree, and not a moment sooner. When Hamlet says at the very end of the play, “The readiness is all,” he could be talking about our clients and ourselves. In a voluntary process such as mediation, no one should be agreeing to anything before he or she is ready. Rush into nothing: the process and the result will be worthy of respect for years to come.
Partner in Healy, Lund and Fiske, now Healy, Fiske, Richmond, & Matthew, since September 1, 1979. From being lawyer and mediator about half and half in the beginning, I am now about 99% mediator and 1% lawyer.
My wife and I took our 3 children, ages 17, 14 and 12, out of school in June, 1978 and we bicycled through Europe and backpacked in Asia for a year, deciding in about April 1979 that when we returned to Boston I would become a divorce mediator. Back home I started talking to judges, lawyers, therapists, ministers, teachers and anyone who would listen. People thought I was a meditator because no one knew what mediation was, back then. When I said, "I help couples sit and talk and listen to each other and get divorced peacefully," the almost universal response was "That makes so much sense." Harvard Law School Professor Frank Sander said, "You are riding the crest of a wave, but don't give up your day job."
A Massachusetts probate judge, the late Sheila McGovern, recommended I join the law firm of Healy and Lund. Regina Healy and Diane Lund did what she said, and they changed the name of the firm to Healy, Lund and Fiske. They taught me family law and I taught them mediation. Probate Judge Edward M. Ginsburg believed in the process and sent cases to me. My first mediation began with the wife addressing her husband, their two lawyers and me: "We understand we are some sort of experiment!"
After two years of mediating divorces I had my first mediation training when John Haynes and Steve Erickson came to Worcester. Then Margaret Shaw joined with the Mass. Bar Association in 1985 to provide more divorce mediation training, and Chris Moore did the same in 1987. Diane Neumann, Phil Woodbury and I founded Divorce Mediation Training Associates in 1988 and we have been training people in divorce mediation ever since.
I have probably mediated about 2,000 divorces, separations and contracts to stay married since 1979. In response to requests from families I have expanded my mediation practice to include a broad range of disputes, from siblings trying to decide questions of care of a relative to a father and son reaching a financial agreement. I have volunteered my services as a mediator to my town government: in one case I helped to resolve a dispute between citizens and a town official. The point: mediation is a creative, efficient process for addressing human conflict. You get a place to talk. You stay in charge of your life.
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