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<xTITLE>Learning from Every Mediation</xTITLE>

Learning from Every Mediation

by Laurie Israel
August 2021 Laurie  Israel

Learning from Every Mediation 

I have been mediating for over twenty-five years. During this time, I have had many different experiences with clients, including the good and the bad. I have also had experiences that exceed good -- mediation can be inspiring, almost celestial in process and in results. 

Some mediations seem quite easy. People are able sometimes to come to clear, fair, and amicable solutions with just a little guidance. In the divorce mediation context, these people are sometimes so good-natured and harmonious that the mediator wonders why they are choosing to part ways.  

Sometimes a mediation session is so full of rancor that it results in no agreement and can even acerbate the conflict between the two clients. They leave the sessions more embittered than they were when they came in.  

Most mediations are in between these two extremes and exhibit the usual low-level of conflict and poor mutual understanding. Two people with differing views of what’s fair and lack of empathy for the other’s position is common. Also, people tend to communicate poorly about their differing needs, even though these differences are sometimes easily resolved.  

In these cases, the mediator’s role is to provide the clients with some guidance to help them understand what’s at the root of their disputed issues. This can create awareness on the part of the clients, and also mutual understanding and compassion. It gives them the opportunity to make small changes in what they (think) they want. This has the effect of facilitating agreement and often results in a successful mediation. This type of case is the most common -- it is the bread and butter of our practice.

The one thing that constantly surprises me in each and every mediation I conduct is how much I learn (and how many mistakes I make) in each session. And, as in life, I learn from my mistakes. It’s painful, and even embarrassing, but it’s true. 

Mediation is complex and subtle. It’s not really something you can learn from books. It’s something you just have to experience. It’s like riding a bicycle.

In each session, I make a number of missteps. I could list them as I make them, because I realize the blunder immediately afterwards -- what I did in that moment was an error in handling the mediation. I’m sure all of you have experienced that, too. Awareness is the key to improvement.

Notice, that I said “what I did” in the paragraph above.  

Most of our miscalculations are made by our doing too much. We might try to lead the clients too strongly. That’s a very common and frequent mediator error. This often is a result of interjecting our own experiences, views and values. We substitute our own thoughts of what the clients should do with their thoughts. Part of this is a mediator’s tendency to prejudge.   Prejudging is always a problem we must struggle with and overcome. It’s important to try to identify our missteps after each and every exchange with clients. That’s how we learn. 

There are many mediation mistakes made under the guise of “doing too much.” And “doing too much” really comes down to “saying too much.”

Here’s a general rule for you:  

The less the mediator says, the better. The more silent space there is in a mediation session the better. The mediator’s silence is certainly a preventive measure against “doing too much” or “saying too much.” You’ll find that the silence is magical, even golden. Your clients will enter into the silence after a time and say what they think, rather than what you think. This is very important.  And you will almost always learn from and be surprised at what your clients say.  Letting this happen almost always moves the mediation forward in a positive way. 

A big mistake I often make is to try to rush the mediation session along. I think my desire to do this is based on wishing to save my clients money (the cost of my time in the mediation). I’m very aware that people have limited financial resources and I don’t want to make their problems worse by taking longer than required in the mediation.  

But the rush to completion imposes my thoughts onto theirs. It makes the result for the clients less meaningful because they aren’t coming up with their own solutions in real time (with the help of my gentle and delicate facilitation). So the rush for completion is not really worth it, even though it’s coming from a kindly and thoughtful place; the desire to save them money. It turns out to actually not be cost-effective. 

It would be good if we could, in real time in a mediation session, write down the mistakes we make as we make them when they are fresh (and painful) in our minds. That way we could review them -- all of them -- immediately after the session. We won’t remember all the mistakes after the mediation session ends.  But even without doing that (it’s awkward to write during a session!) we can and do learn from them.  Maybe slowly, and maybe we repeat the same mistake a number of times, but we do eventually learn. That’s how we become better mediators. I’m now finding that in every single session, with every word I speak and with everything that happens in a mediation session, I learn something. That’s a good thing.

So, to conclude, forgive yourself when you make a misstep or miscalculation in mediation. It’s actually a good thing to err, because every time you speak with clients and conduct a session, you will learn from your mistakes and become a better and stronger mediator. 

Blunder and learn, colleagues.

Biography


Laurie Israel is a lawyer/mediator who works in the areas of collaborative divorce, divorce mediation, divorce negotiation, prenuptial agreements and postnuptial agreements. A significant part of her mediation practice is mediating prenuptial agreements and she has written extensively on this subject. Laurie has published articles on prenups in The New York Times and in the Wall Street Journal, MarketWatch, as well as in The Huffington Post. Laurie is the author of “The Generous Prenup: How to Support Your Marriage and Avoid the Pitfalls,” now available through online booksellers. Laurie also helps people who wish to stay married through providing marital mediation and is a frequent presenter on this topic, giving trainings to mediators around the country. Laurie is a former board member of the Massachusetts Council on Family Mediation and of the Massachusetts Collaborative Law Council. She is a founder and a managing partner of Israel Van Kooy Law, LLC in Brookline, Massachusetts. Laurie writes regularly on marriage, divorce, mediation and other topics.

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