Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>The Big Picture</xTITLE>

The Big Picture

by Phyllis Pollack
August 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

       In late May 2009, I flew back to my childhood home to help my siblings move our mother into an assisted living facility. As she had been living in the family home for close to sixty years, it was the move from *!!##*##!!*,  to say the least. (See, The Greatest Generation.)

      Because our mother was so ornery about the move due to her inability to comprehend her situation (thanks to severe dementia), it was suggested that my siblings and I petition the court to become her legal co-guardians, and thus have her declared legally incompetent.

      We did so and at the hearing, the only issue about which the judge expressed concern was whether the three of us (my siblings and I) got along well enough that we would not reach an impasse or come to blows in making decisions about our mother’s care and well being. We assured the court that this would not be an issue. Accepting our responses ( as we had all been sworn to tell the truth), the court granted our petition. Each of us became a legal co-guardian of our mother.

      Since that day in June, I have not thought much about the judge’s concern . . .until this past week. I had a mediation involving a partition of real estate. A mother had left real property with a large home on it to her children. The children could not agree who should contribute how much to pay the mortgage and other expenses of the property. One of the children, plaintiff, claimed that the others were not contributing at all to these monthly expenses such that she was paying for everything. Due to her limited income, she could not continue to do this, indefinitely. (The situation was so bad that although the siblings were living in the same house, they were not  even speaking to each other). To prevent a foreclosure from occurring at some point in the future, thereby ruining her credit, the plaintiff sibling filed a petition requesting partition of the real property which, once granted, would lead to a forced sale of the property.

      So, the court set the matter for trial in late 2009 and sent the matter for mediation.  In reviewing the briefs submitted for the mediation, I quickly realized that starting with separate sessions was the proper strategy: to put the siblings in the same room initially would only lead to fireworks, an explosion of tempers and one or more of them storming out of the mediation.

      I met and spoke first with plaintiff and her counsel and then met with defendants and their counsel. My goal was to provide the dose of reality that if they did not stop squabbling and bickering, the house would be sold out from underneath them, and due to the downturn in the real estate market, they would end up with zero. In fact, they would be lucky because thanks to the wisdom of the California legislature during the last horrendous economic downturn (aka The Great Depression), they would not have to pay any deficiency or shortfall if the sale of the real property brought in less than what was owed on the mortgage.

      Slowly, I made some headway, to the point where the parties agreed in principle to sit down each month at the kitchen table in the home and go through the bills and jointly pay them. To see if this could, indeed, become a reality, since at present they were not even speaking to each other, and with everyone’s consent (their lawyers included), I held a joint session to work out the details of their plan to work together every month to make sure all of the bills were paid.

      Needless to say, it was a very stormy session. Each sibling had to get the anger and frustration out and off her chest. The old wounds did not heal immediately despite the apologies. When one sibling suggested a provision, the others jumped all over her, ascribing evil motives and bringing up alleged past wrongdoings, and the squabbling would begin again for a few minutes until I  “suggested” a truce.

      More than once, both I and their attorneys had to remind them that if they were unwilling to cooperate and work together, the real property would be sold, courtesy of a court order, and they would end up with nothing. . .  absolutely  nothing, and that this would occur before year’s end.

      Finally, what I and their attorneys had been telling them for more than a couple of hours, sunk in. They saw the “light” and realized they had to work together for their mutual benefit or else lose everything. They were at the tipping point, and they now realized it. (Nash’s equilibrium was at work: it became more beneficial to work together than independently towards the same goal.) They finally saw the “big picture” and stopped getting lost in the forest for the trees.      

      After an hour or so more, the details of an agreement were all worked out and they left with a rocky truce and sort of as a “family” again.

      But, watching them together, squabbling, gave me a whole  new insight into the judge’s concerns about whether my siblings and I got along well enough that we would not lose sight of the Big Picture: taking care of our mother.

      The lesson I learned watching these folks: Do not let minor issues distract you from focusing on your goal. There can be an awful lot of trees in a forest: don’t get lost in them.

     . . . Just something to think about.


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.

Email Author

Additional articles by Phyllis Pollack