A week ago, Sinta Ebersohn, founder of Fair Divorce, started the following discussion in the Divorce Advice LinkedIn group:
“Conflict in divorce cannot be resolved if we don't talk to each other.”
John Grubb, a family law attorney in Houston, Texas, who describes his services as providing “aggressive representation,” responded as follows:
“As a general premise I encourage parties in a divorce to keep talking to each other. However, you must remember in many situations by the time one party has decided to get divorced the communications between the parties are no longer productive, and in fact are destructive. In those situations I encourage people to quit trying to talk to each other.”
Whether or not Grubb is correct in his belief is extremely important because the beginning really does impact the end. And, Grubb is by no means alone in his belief.
What I find extremely troubling about Grubb’s comment is the lack of recognition that well-trained and well-skilled mediators know how to break impasses.
The following is an excerpt from an article published by the Program on Negotiation at Harvard Law School on May 28, 2018 titled How Mediation Works When Both Parties Agree They Need Help Resolving the Dispute: How does mediation work in a lawsuit or other dispute?
“Negotiations have reached an impasse, but both sides agree on one thing: you need help resolving the dispute. You engage a neutral mediator to do just that. Rather than acting as a judge who decides who ‘wins’ or ‘loses,’ a third-party mediator in this mediation assists parties in reaching an agreement….
Ultimately, mediation leads to resolution in approximately 80% of all mediated disputes. Sometimes the resolution is truly ‘win-win.’ At other times, one side is thrilled with the deal, and the other considers it barely acceptable – though better than a long, uncertain, and expensive journey through the courts….
The mediator’s sole interest is to help the parties achieve a settlement. This is also your interest, of course—but only if the settlement is preferable to your no-settlement alternatives, such as a trial or termination of your relationship with the other party.”
In June 2017, I took a 2 1/2 day program at the Straus Institute of Dispute Resolution taught by Doug Noll titled Preventing Bad Settlement Decisions and Impasse.
In June 2018, I completed a 2 1/2 day program at the Straus Institute of Dispute Resolution taught by Nina Meierding and Bruce Edwards titled Advanced Mediation Skill Development: Perfecting Our Craft.
One issue we covered in the Advanced Mediation program was Sources of Impasse. We considered and discussed many such sources before moving addressing the topic of breaking impasse. Interestingly enough, in order to assess the appropriate technique for breaking impasse, one must first assess its source.
The following sources are set forth in the written materials in a document created by Meierding:
- “Inadequate Information: Insufficient information to make an informed decision;
- Mismanagement of expectations: Other sources of information have created an unrealistic set of expectations;
- Principle: Underlying beliefs, values, morals, and needs are more important than reaching the ideas;
- Externalities: Other factors, not related to this specific problem, are impacting the outcome;
- Disagreement about the merits of the case: Differing opinions about the facts and the law;
- Inability to seek closure, look ahead or move forward: (a) Caught in the cycle of conflict; (b) Unable to see self in other roles; (c) Feeling a sense of disloyalty to others if settle;
- Machismo, Ego, Pride, Loss of Face: Concessions seen as weakness or betrayal;
- Emotionality: Inability to process in constructive way;
- Negotiation styles are different: One stop shopping vs. line dancing;
- Tactical advantage not to concede: (a) Playing a game of ‘chicken’; (b) Who ‘blinks’ first;
- Scarce resources: Simply not enough to go around;
- Outcome avoidance: Delaying the inevitable as long as possible;
- Bias: (a) Status quo bias – keep things the way they are, risk-averse; (b) Confirmation bias – giving more weight to statements that you agree with, discounting statements that disagree with your own; (c) Reactive devaluation – discredit the statement if you have existing distrust or dislike of the person delivering the message;
- Styles (monochronic and polychronic) are incompatible: (a) Monochronic – sequential, linear, agenda driven, clock-bound time; (b) Polychronic – multiprocessing, linkage, relational time;
- Timing: The right answer at the wrong time is the wrong answer;
- Agendas (Hidden): Unstated goals;
- Cognitive overload: (a) Too much dissonant information at one time; (b) Too much reality testing at one time creates resistance;
- Lack of authority: No access to people who make decisions;
- Endowment effect: The tendency to overvalue things that are your own;
- Single text document (pre-drafted ‘deal’) or Boulewarism (my way is the way)”
In addition to the above list, the members of our class included the following:
- Unidentified need
- Fear of change
- Belief that resolution is unachievable
- Belief that fairness is universal
“Theories of Fairness” by Meierding (also included in the written materials)
Legal Theory – Under the ‘shadow of the law’ or the ‘umbrella of the law’, one looks to objective criteria, such as statutes, cases, codes of conduct or legal precedent to determine what is fair.
Equity Theory – The standard of fairness is based on contribution – how much time you spent, the money you contributed, the level of energy you expended, the degree of difficulty, creativity, level of sacrifice.
Contextual Theory – The standard of fairness depends on who you are, or the situation you are in, or the nature of your relationship, or what the other person has done.
Culturally based or needs based theory – The standard of fairness is based on cultural practices, traditions and beliefs. In collective cultures, fairness would dictate that proceeds could be divided among the group – regardless of who did what; or divided on a basis of need rather than an individual’s contribution; or divided based on status within culture or gender.
Faith based Theory – Fairness based on the tenets of a particular religion i.e., scripture, religious teachings, what would my God want me to do.”
I realize that all or many of the above-referenced sources of impasse may not make sense to those of you reading this article. I don't expect otherwise, unless you are a well-trained mediator or have otherwise taking such training. What is essential for you to understand, however, is that impasse is to be expected and that experienced, well-trained and well-skilled mediators are or should be familiar with such things and have strategies and skills to help people move past it. In other words, people should have enough understanding of mediation to know when they might benefit by retaining a mediator.
In any event, as I mentioned above, in order to assess the appropriate technique for breaking impasse, one must first assess its source.
The above-referenced mediation programs are just two of many programs I’ve taken on the topic of impasse, in which I’ve learned both sources of impasse and techniques for breaking it. In addition to those programs, I’ve engaged in a great deal of self-study and practice, including utilizing such strategies and skills in my work as a mediator.
Tragically, a great many people don’t understand mediation and therefore lawyer up or go to court when they reach an impasse.
Notice that one of the causes of impasse added to the list by a fellow mediator taking the program was "lawyering." For those who have any familiarity with me and my work, rest assured that I was not the person who included that on the list. My contribution, for what it’s worth, was the “belief that fairness is universal.” I’ve written a number of articles on this topic, including The Grave Mistake of Confusing Concepts of Justice and Fairness with the Law.
Considering that Grubb, like many lawyers, encourages people to quit talking to each other once they’ve reached an impasse, rather than engaging a neutral mediator, it’s really no surprise that “lawyering” was added to the list of Sources of Impasse.
It is unrealistic to expect that the general public would understand mediation, what it entails, and when they would benefit by retaining an experienced, well-trained, and well-skilled mediator. However, shouldn’t lawyers take it upon themselves to gain such knowledge and understanding, considering that they work with people in conflict?
In his article titled Helping Families By Maintaining A Strong Well-Funded Family Court that Encourages Consensual Peacemaking: A Judicial Perspective that was published in the July 2015 edition of Family Court Review, Hon. Thomas Trent Lewis, Supervising Judge Family Law Division of the Los Angeles County Superior Court, said the following:
" Our judicial officers are available to offer decisions when parties cannot or choose not to decide for themselves....
If the family court is to be a last resort for family resolution, we have an affirmative duty to work with other institutions to educate parents on resources and best practices for parenting their children....
Those two points go hand-in-hand, in that family law court is not used as the last resort, although it's supposed to be used as such. The reason it's not is because parties who cannot decide for themselves on their own don't typically involve mediators trained in facilitating such things. Furthermore, many 'choose not to decide for themselves.' This is true in every field of law and explains why people have essentially bankrupted the court systems in so many jurisdictions and the government can no longer afford to fund the courts to address such misuse....
Ultimately, whether a family litigates its disputes or resolves the dispute through mediation, parental education on the effects upon children in the midst of a family law dispute advances the goal of 'mediate when you can, and litigate only when you must.'...
When personal safety is not at issue or compromised, mediated and collaborative negotiated resolution of disputes can achieve favorable and more durable outcomes for parents and children. It is the obligation of our courts to supplement our decision-making authority with an educational role to inform parties about peacemaking options inside and outside the courthouse."
How exactly do lawyers "mediate when you can, and litigate only when you must," when they make no effort to gain even a basic understanding of mediation and how it works?