In mediation, it happens fast: suddenly, thirty minutes slip by during which parties rage in a verbal offensive: complaining, accusing, and reliving the past, emotions high. No forward progress. Both parties have opened gunnysacks filled with past grievances, unresolved issues, hurt feelings, pet peeves. Sentences begin with “You always….” “You never….” “How come you can’t just…?” Both parties insist on having the last word; neither listens to the other.
Psychologists call this “acting out” behavior: when the rational, thought-producing neo-cortex brain acquiesces to the primitive survival drives of the “reptilian brain.” Emotions rule the moment. Parties cannot give thought to what might result from their accusations and judgmental attacks. Hapless mediators notice the clock ticking, knowing that frustrated clients sometimes blame mediators for their own lack of progress.
In our experience as divorce mediators, such acting out can be preempted by the mediator’s more active involvement in agenda-setting, communication coaching, giving useful information, facilitating brainstorming, and tracking progress.
This article will help mediators preempt client acting-out by systematic strategies employing business methods and communication techniques to help clients begin creating a better future instead of invoking a dysfunctional past. These strategies and techniques evolved from our work as divorce mediators; however, they are general enough that they can be applied or adapted to almost any mediation setting.
First, it is important to address clients’ three basic needs that must be met for the client to be successful in mediation. There is an inverse correlation between fulfillment of these needs and acting-out behavior. The more these needs are met during mediation, the less clients will need to act out.
These three needs occur in all mediating parties: the need to feel heard, the need to feel in control, and the need to feel progress. Meeting these needs can be an ongoing challenge for mediators. For example, often the client who refuses to listen to his/her partner is the same party who does not feel heard. This client thus invokes the past at every opportunity.
Trying to reason with a client who is dragging the past into the current discussion does not work because that client’s neo-cortex has shut down, preempted by the “reptilian brain” that regulates emotions needed for survival. In the moment, rational thought is not possible for this client. The mediators would do better to meet client needs as defined above and utilize strategies that preempt the need to act out.
The following is a discussion of how mediators can utilize business methods and communication techniques to meet these needs of all mediating clients and thus significantly reduce the motivation for clients to act out.
In pre-mediation caucuses, a strategy that we advocate (see Mediate.com , “The Case for Caucuses,”), it is very important that mediators clearly understand the context of what gave rise to the problems. When mediators are able to feed back this story to the party to that party’s satisfaction, a feedback loop has been completed and the party will feel heard. Feeling heard lessens a disputants’ need to invoke the past and enables him/her to move on.
The mediator in a sense serves as a surrogate for the opposing party. If it is impossible for the opposing party to complete the feedback loop, the mediator’s having done so in caucus helps the individual to feel heard even later in joint session. An axiom from the field of interpersonal communication is relevant here: “a feeling will persist until it is heard.”
Another way mediators can ensure that parties feel heard is to continue restating the party’s perspective during joint sessions (a lesson from “Mediation 101”). Sometimes in the wish to appear efficient or because they are reaching the end of the mediation, mediators might skip restating the obvious. However, this omission ill-serves the process. We have found that restatement by the neutral and unbiased voice of the mediator throughout mediation, even if it feels redundant at the time, gives a neutral voice to each party, better enabling the other to hear, thus the speaking party feels heard.
A third way to help parties feel heard is to translate their grievances from the past into needs that will prevail in the future. Mediators can say, “Moving forward, what do you need to do or have so you won’t have such concerns?” or “How can you envision the future without this problem?” are queries that help parties reframe past grievances into future solutions and help them feel that their past has been heard and validated.
This third technique, the mediator’s “reframe” from complaint to brainstorming for solutions also helps parties feel more in control. Mediation by definition sets up both parties as equals; thus, neither party is in control of the outcome, contributing to the anxiety level. Especially in divorce mediation when all aspects of one’s life are subject to change, disputants suffer from a high level of anxiety. Anxiety is a product of the reptilian brain. Anxiety about an unknown future motivates parties to retreat to the familiar past, despite how dysfunctional the past had become. The greater the anxiety, the less able is the party to tap into the resources of the neo-cortex, that is, the rational part of the brain. The more the party’s neo-cortex is in control, the less motivation there is to relive the past by acting out. The reframe to future solutions by getting the parties to brainstorm helps circumvent this negative cycle.
There are additional ways mediators can help clients feel more in control. For example, agenda-setting is one such area. At the end of the first orientation session or even in the individual caucuses, we ask if there are any burning issues that need to have priority. Such issues could be: how is the mortgage to be paid next month or where the children will spend their time this weekend. Although our standard approach is to begin with parenting issues to allow them time to collect financial information, we are open to letting their needs shape the agenda.
Another way to help clients feel in control is to give them useful information. In our orientation session, we walk them through a binder of materials that helps ground them in the process. We encourage them to work together on their issues and coach them on what to do if the communication ceases to be productive.
When it comes to parenting plans, for example, we give them a variety of models and discuss their advantages and disadvantages. We alert them to common challenges when creating a schedule: the need for flexibility vs. predictability. We ask them to list all their schedule needs such as business travel, educational classes, recurring meetings, or other obligations that reoccur on a predictable basis. We help them understand the need to trade off custody to take these needs into account. Such basic common-sense information often escapes high conflict parties. By mediators doing so, the advantage is not only helping clients feel in control but also in moving forward to finding solutions together.
Once parties start making decisions, it is important to memorialize their decisions, even though initially, all decisions are tentative until both agree that the decisions are final. After each mediation session, we email a confidential mediation summary that includes agreements, proposals on the table, action items for each, and a list of the remaining open issues. Clients are invited to make any corrections and resolve any discrepancies together before the next session prior to which time a new agenda is emailed to them. Such project management strategies create a “mediation momentum,” positive energy that helps them stay on task and engages the rational instead of the reptilian part of their brains.
During mediation, we coach them on how they might best work together outside of mediation by giving them guidelines. For example, we point out that if their communication becomes problematic, that either one can call a timeout and they can resume their discussion after a cooling-off period. If the communication remains unproductive, we ask that rather than letting arguments escalate, that they bring the issue to mediation.
At some point in the mediation, we point out that each has a very different perspective on their history and that it is probably not realistic that either could persuade the other as to the validity of the other’s position. Usually they sheepishly acknowledge that such is the case. We point out that their efforts will be more productive if they concentrate on finding solutions for the future rather than trying to persuade each other that their take on their shared history is the correct one.
We reassure them that for us, it does not matter. We acknowledge the validity of both perspectives and do not make judgments as to which “truth” should prevail. We emphasize that as experienced mediators, we are accustomed to moving forward despite discrepant narratives. Since the past is not going to change, time and energy is better spent toward finding solutions for the future.
At this point in the coaching, I point out that listening and acknowledging the validity of each other’s perspective will help them to move on. We distinguish among understanding, acknowledging, and agreeing. Parties in dispute can understand and acknowledge, but they do not have to agree. Unhinging agreement from understanding can enable clients to acknowledge their partner’s perspective.
Acknowledgment is a first step to forgiveness; either acknowledgement or forgiveness guarantees that the other will feel heard. A definition by an anonymous author is so relevant here: “Forgiveness means giving up all hope of achieving a better past.” I remind them that by choosing mediation, they have both agreed that they will work together to achieve a better future for themselves and [if they have them] for their children. Agree to disagree and move on. Couples who are able to do so do not waste time in mediation by acting out their dysfunctional past.
Mediators can be proactive in helping clients achieve this goal. Grounded in the needs all those in mediation have: the need to feel heard, to feel in control, and to feel progress, mediators can use the above business strategies and communication techniques to help clients resolve their differences and thus have productive mediations, absent of acting out behavior.
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