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<xTITLE>Never Can Say Good-Bye</xTITLE>

Never Can Say Good-Bye

by Phyllis Pollack

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

     Denial. Anger. Bargaining, Depression. Acceptance. These are the five stages of grief as first set forth by Elizabeth Kübler-Ross in her 1973 book, On Death and Dying. Kübler-Ross applied these five stages not only to those dealing with terminal illness but to those dealing with  any form of catastrophic  personal loss, be it loss of a job, or of income or of any other of life’s tragedies.

       My first training to be a mediator was in divorce mediation. At the time, I, naively, asked the instructors if such training would be helpful to me as I wanted to mediate civil litigation matters. They told me that if I became accomplished enough to mediate a divorce matter, I would be able to mediate anything – including a civil matter in litigation. (They were right!)

       During this training, the instructors discussed the five stages of grief and its applicability to divorces. A divorce is a “loss” and like any other “loss,” one first denies it is happening, then gets angry about it, then tries to bargain her way out of it, then gets depressed about it and finally is willing to accept it and deal with it and the custody issues, the property settlement, the support and the visitation issues that go along with accepting the “loss.”

      As I started mediating civil cases, I kept these five stages in mind. From time-to-time, I saw one or the other parties to the dispute in one or more of these stages. She was grieving either about the “loss” itself, (that is, the subject matter of the dispute) or about the litigation, itself (which had now taken the place of the actual “loss”.) I saw the “denial” stage quite often, followed by the “anger” stage, almost as often. 

       I remember my instructors telling me that unless and until the parties hit the “anger” stage, the matter would never get resolved. And, they were right. . . . I waited for the anger and I knew that once a party got really angry during the mediation and got it out of her system, then the parties had a chance of resolving the dispute. But until then, she would never “accept” the reality of the situation, and therefore would never “accept” the notion of settling.

       I blog about this point now because a colleague, Steven G. Mehta, wrote an article in the September 2, 2008 edition of the Los Angeles Daily Journal entitled “Be Prepared When Grief Manifests Itself During A Mediation.” (Mehta article). In it, he discusses these five stages and aptly points out that the parties should be aware that “mourning” often occurs during a mediation. More often than not, a party will proceed through one or more of these five stages during the mediation, grieving over the “loss” which is either the subject of the dispute and/or the litigation, itself, which has taken on a life of its own and has now substituted itself for the “loss.” The party will “grieve” and “mourn.”

      The trick is to understand the emotions for what they are: a grieving process and not misapprehend it to be some form of gamesmanship, or some litigation tactic being intentionally displayed to gain some “tactical” advantage. It is always hard to say “good-bye” and to “let go” forever, even to a lawsuit. And that is precisely what a party is doing in a mediation, especially when she does resolve the matter. (This is why, often times, just when one thinks the matter is settled, suddenly an “issue” crops up potentially sabotaging the settlement – it is the last bit of “clinging-on” before finally having to say “good-bye” once and for all.)
 So. . .  in your next negotiation or mediation, when you think the other party is being a jerk and irrational. . . think again. . . she may just be “grieving” or “mourning” her “loss.”

       . . .Just something to think about.   


* by the Jackson Five    


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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