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The “Accidental” Mediator

by Phyllis Pollack
May 2010

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

Sometimes, the goal of a mediator is not to settle the case but simply to prevent the dispute from escalating into all out war. I was reminded of this recently by getting into the middle of a dispute between two friends who have been separated for many years and now wanted to finalize it by a divorce. The only issue was the property settlement. To be noted well, I am not trained in family law, am not licensed to practice law in the jurisdiction in which my friends lived and being close to both of them, I have a huge conflict of interest (“Disclaimer”).

To maintain confidentiality, I will call my male friend John and my female friend Jane. John and Jane had been separated for many years. Periodically, I would speak with each of them as I remained friends with them both despite their separation. Lately though, what I was hearing from each of them was that he/she wanted to work out a property settlement so a divorce could be obtained but that the other was either not cooperative and/or not responsive. John complained to me that while he made a proposal to Jane, she had rejected it but never made a counter-proposal. Jane, on the other hand, told me that she had told John what she wanted but that John wasn’t listening and/or was avoiding dealing with it.

This back and forth went on for about a year. It finally came to a head when Jane filed for a divorce to force the issue. Jane warned me she was going to file because she got tired of the purported non-responsiveness of John.

It was a good thing she warned me as I soon got a telephone call from John who was extremely upset about being served with the lawsuit and demanded that I choose sides.

Being the neutral that I am, I told John that I was on no one’s side but only wanted what was “fair” to both of them. I did not have a personal stake in how this ended but only wanted the outcome to be “fair” (whatever that means!)

I listened to John for quite awhile, letting him vent and get it out of his system. I discussed the notion of perception with him; i.e. how he perceives something may be different than how Jane perceives it and vice-versa.

As might be expected, John stated that he would escalate this to all out war, defend himself to the utmost and go on the offensive. In response, I suggested that he not let his emotions take over but that he try to rise above them and view this lawsuit dispassionately. The only issue was a property settlement and if he played “tit for tat” and blasted back with “everything he had”, the only people who would benefit would be the attorneys whose fees would greatly increase. I told John that Jane really did not want to litigate but rather to settle quickly; she filed suit because she perceived him as being non-responsive; she wanted to get his attention so that he would focus on this!

After awhile, John calmed down and begin to view this dispassionately. He admitted that he, too, wanted to settle it and do so quickly.

So, I became the “accidental” mediator and called my friend Jane (with John’s permission) to advise that John was served, was upset but wanted to settle it and to do so quickly. I asked her for a proposal. She told me she needed certain information from John before she could give me a proposal. She gave her permission for me to discuss this with John.

So, I then called John relaying Jane’s request for more information. John provided it to me in great detail. Again, I called Jane and provided the information. I found that a large unstated issue was trust. Purportedly, when John had given some of this same information to Jane previously, she was not sure that he was telling the truth. But, because of my relationship with each of them, they each trusted me and believed that the other would be honest with me. So, when I conveyed to Jane the same information that John had told her directly in the past, Jane felt more comfortable believing it. Jane said she would gather some information and get back to me with a counter-proposal.

Although by now, each of my friends had attorneys, it seemed that the attorneys were not always communicating with each other. On more than one occasion, this created unnecessary conflict and potential escalation of this dispute into World War III. Over the next couple of weeks, I checked in with each of them, and one of them would tell me what they had instructed their attorney to do. More times than not, the attorney had not yet done it or communicated it to the other attorney. So with the party’s permission, I would convey it to the other, giving the other party a “heads-up” so as to prevent the lack of communication from causing that party to become upset.

Variously, each of them would tell me that they had to check with their attorneys to which I responded with great encouragement that they do so, reminding them of my Disclaimer.

In all of my conversations, I continuously reminded each of them that the other party did not want major warfare, but wanted to settle and to do so quickly, and since the only issue was a property division, settlement should not be difficult. I kept reminding each of them that only the attorneys would make money from any escalation of this dispute. I tried my best to remind them to not let their emotions take over but to keep moving toward the goal: a quick and painless division of the property.

My discussions with them also encompassed a general framework of any potential settlement: what, in general, it might look like.

Last week, my friends, accompanied by their lawyers, met with each other and worked out a settlement using the general framework I had discussed with them. While I was not there, I would like to think that my accidental mediator role played a part in that I listened to each of them, let them vent, kept them in communication with each other so that they did not let misassumptions or lack of communications run amok in their imaginations and continued reminding each of them that each of them wanted to settle, to do so quickly and that the only ones to benefit from a long drawn out battle would be the attorneys.

Did I get paid any money for the hours I spent on the phone helping my friends contain this dispute? Of course not! But did I obtain satisfaction from helping them? Yes! and it was “Priceless!”

. . .Just something to think about.

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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Website: www.pgpmediation.com/index.htm

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