Iran and Mediation?

It is quite unlikely that Iran’s atomic challenge will ever be brought for (international) mediation.  When is something ripe for mediation?  Mediation works best when both parties have something to gain by good-faith negotiation.  It is effective too when both parties need to continue in some form of a relationship (think of parents of a child(ren) who will always be co-parents.  Finally, mediation works when each party makes the cost-benefit analysis and realizes that strife will bring much less positive resolution than will communication and good-faith dealing.

None of the above reasons in favor of mediation pertain to Iran.  For all others, mediation is the best option that can be undertaken. Mediate don’t litigate.

Introduction to a Mediation Lecture by Martin Rosenfeld

I completed a mediation lecture for NACLE. I have the following introduction on the taped lecture, which will soon be made available to the public.

OVERVIEW OF MEDIATION LECTURE/MARTIN ROSENFELD

Mediation is a means by which a trained third-party, the mediator, helps two parties get to a resolution of their dispute or problem.  There is nothing magical about mediation; it is a process that believes the parties best equipped to resolve their differences are the parties who are in disagreement.  The process of mediation is voluntary and informal. The parties may leave the mediation at any time and there is no penalty that is brandished to require that the parties reach an agreement.  Mediation is informal and it is part of the broad universe known to us as ADR-alternate dispute resolution.

The mediator tries to get the parties to get to Win-Win.  This goal is achieved when both parties realize that they gain more by reaching an agreement than by having a third-party decide the matter for them.  After a successful mediation, the parties have learned to distinguish between their positions and their needs.  The mediator tries to guide the parties through the process utilizing, inter alia, listening skills, re-framing, problem-solving strategies, and caucusing. 

In divorce mediation, the mediation model works well with all issues in dispute, with the possible exception of custody issues.  Eventually the parties are able to reduce their agreement to writing, in the form of an agreement or memorandum of understanding.  The mediator is not the attorney for either party and the parties are therefore encouraged to have legal review of their agreement before it is finalized.

Mediators receive training in the skills they will need for their art by formal training and observation of others who are proficient in the mediation process.  There are ethical laws that govern mediators, and they are somewhat related to those rules which govern attorneys.  Successful mediators, however, do not need to be attorneys.  They must be, however, good listeners, open-minded, and interested in helping people find solutions to what may appear as intractable problems.  Mediators do not dictate results.  They act as facilitators in helping the parties reach a solution to their conflict which both parties can live with.

Mediation is a growing field.  It includes, for example, elder mediation, commercial mediation, and marital mediation. While the mantra in mediation has been “Don’t give up your day job!”, the mediation field is welcoming larger numbers of full-time mediators to its province.

Mediation skills are useful whether or not one intends to enter the field.  Problem-solving is a facet of life itself.  It is my hope that you will learn some of the basics of mediation from this lecture and wish to learn more about this dynamic field.  One day you too may join in the refrain of “mediate, do not litigate.” Best wishes in your mediation journey.

July Articles on Divorce Mediation

“Elder mediation”/Georgia Daniels (found at www.mediate.com)

This article summarizes the needs for elder mediation. All parties to the issue at hand are needed to participate in the mediation. A key to a successful mediation is the transmission to the elder party that her/his participation is voluntary.  This is needed to ensure there is no sense of  coercion or undue influence.  Topics that might comprise the mediation could include health decisions, end-of-life discussions, the right to continue driving one’s car, etc. The list is endless.  Each mediation is unique and is geared to achieving an informed and proper decision.

Comments: With an aging population, the elder mediation model is an idea whose time has come. Decisions such as the writing of a ‘living will” will be less intimidating if discussed in the context of a family mediation scenario.

“To Certify or Not to Certify”/Diane Levin (found at  www.mediationchannel.com)

This article discusses pro’s and con’s of more formal mediation certification.  Mediation is not as easy as talking. The proof is what happens often when people in a dispute try talking through their problems. Professional standards can help the mediation profession.  The reward will be realized by mediation clients.  Tougher standards engenders heightened professional  standards.

Comments: It is difficult to argue with the suggestion that professional standards are “standard” in most fields.  The question that needs addressing is whether mediators are born or made, and who will create the standards that make the mediators of tomorrow.  The need for greater introspection in the arena of mediation training is an effort well worth our collective attention.  This article has a related treatment in the blog that follows.

 

“You Say You’re a Certified Mediator:Says Who”/Dr. Tammy Lenski (found at www.makingmediationyour dayjob.com)

The author writes in a readable fashion. Her point is simple: There is a big difference between a mediator-to-be putting in “seat time” and her/him being a truly certified mediator.  The questions that govern this process evolve about the following: Who is a legitimate certifier?  The author suggests the following answers: Court Programs/Programs created by statute/Certification by regional or national organizations/Professional programs. As a professor of mine once commented: “If you don’t define your target, how will you know if you hit it?”

Comments: Even for experienced mediators, these comments are important to consider. Mediators are proud of their work.  We all gain if standards are geared to ensure the professionalism and competenct of those who choose to join our ranks.

June Articles on Divorce Mediation

Two significant article/essays appeared in June dealing with divorce and its outcomes.  They underscore the need both for marital mediation and divorce mediation.  These pieces appeared in Atlantic and Time magazine. First, a word on marital mediation.  An article on this newer mediation field appeared in mediation.com in May 2009.  Marital mediation is a term attributed to John Fiske in 1997 wherein he described a type of consultation between married people who wish to talk without “pathologizing”. Marital mediation helps a couple talk about how to stay married.  The goal is to effect behavioral changes so the couple can maximize their happiness together.  This stands in contradistinction to the two magazine articles that appeared this past month.

The Atlantic piece on marriage was entitled “Let’s Call the Whole Thing Off” by Sandra Tsing Loh. Ms. Loh is convinced that happy marriages are at the the 10% level.  Why then do people stay married, despite the lack of love and happiness? They do so, says Ms. Loh, for their children, to spite their parents, or because there is no other real option.  Her advice is to avoid marriage (she was involved in an unhappy union) or risk suffering the pain of having a mid-life break-up for something “as fleeting as love”.  Ms. Loh’s article is hard-hitting and judging by blog comments, she is well known as a resident cynic and biting observer of the human condition. Is she right?  Only the reader can judge.  She does make her depressing case in a well-written piece.

A similar tack is found in Time Magazine (July 13, 2009) in an essay entitled “Why Marriage Matters” by Caitlin Flanagan.  Ms. Flanagan documents the marital trainwrecks such as that experienced by the Edwards” and Sanford’s.  She concluded that the marital breakup statistic is the single-most force causing hardship to this country’s masses.  She quotes Leonard Michaels: “Adultery is not about sex or romance.  Ultimately, it is about how little we mean to each other.”

Ms. Flanagan examines the toll divorce exacts from children.  While we recognize that marital bliss is something of great worth, we are not prepared to put in the hard work and sacrifice to get to this point.  The essay concludes with the question of what marriage’s purpose happens to be.  Is it meant to give pleasure to adults or does it have the traditional purpose of ensuring the new generation’s safe passage into adulthood? (She bypasses MANY other possibilities.) The final verdict? “What we teach about the true meaning of marriage will determine a great deal about our fate.”

The above essays paint a frightening picture.  Divorce rates are roughly 50% of all marriages.  The work of mediators and mediation will have much impact on how future generations thrive (or fail) in light of the odds that are adverse to their interests. Our work is cut out for us.  I prefer to think Ms. Loh of Atlantic magazine is wrong.  If she is not, we have a great deal of hard work ahead of us. Mediators, start your engines.

Articles on Mediation/May 2009

Article:”Telling Your Kids:Helping Your Kids Cope Over Time”/John Ventura and Mary Reed (found at www.divorcemag.com)

Summary:Children are often the innocent victims of a divorce. The authors offer much good advice, only partially summarized as follows:

Monitor your behavior in front of the children to ascertain it is positive. Do not say negative things about your spouse in front of the children. Do not fight in front of the children. Do nothing that will interfere with the parent-child relationship. Do not make your children your confidante in divorce-related matters. Assuage their fear; let them know you will be there when they need you. Remind them that they are not responsible for their parents’ divorce.

Parents who express their bitterness openly, in front of their children, have been shown to create unhappy children, who will be more likely to have their own troubled marriages in the future.

Comments: Divorce has many negative ramifications. Children deserve their own chance for future happiness. Perhaps we need to offer classes on divorce to explain the “right” way to divorce.

 

Article: “The Cost of a Thing is Your Life”/Victoria Pynchon (found at www.niacr.org)

This article on the relative importance of money, has footnotes, a reference to Danny DeVito and philosophy. It presents an interesting “take” on money. Money is not simply a quantifiable market-related asset. It has different meanings to different people. It is wrong to say this is “only about money”. For some, money means security, comfort, happiness, etc. Find out what meaning money has for your client.

Comments: We use words different ways at different times, in different locales, etc. It behooves us to understand what a term such as “money” means to someone who is before us in a negotiation, mediation, etc.

 

Article: “Care-Full Conversations: Elder Mediation and Family Decision-Making/Susan Curcio(found at www.mediate.com)

The elderly may have a diminished capability. dealing with them requires additional skills. A mediation with the elderly must ensure that all people at the table are heard. A plan for effective communication might be needed. The need to avoid intra-family litigation cannot be underestimated.

Who will initiate the mediation model? It might be the elder who wishes to make known his end-of-life decisions. Or it might be a child wishing to discuss sibling issues, medical needs, POA, guardianship, etc. Why pay the expense of court. Those who know the elder best are the ones who should choose the mediation.

Comments: The author is a non-attorney, but her points are made well. If your practice does not advertise this type of mediation, you may wish to read this article for a fresh approach to mediation.

Articles on Divorce Mediation/Week of April 11,2009

Title: “On Realistic Expectations/Anna Perry (blog found at wordpress.com)
Summary: This short blog piece make its point succinctly: The legal system does not protect one from spousal vindictiveness. Nor does it cure a spouse of their negative traits. In fact, the confontational mode often leads to angrier and poorer individuals. The only real alternative with a positive outcome is Divorce Mediation.
Comments: Sometimes a point is best when made “short and sweet”. This blog makes one think; i.e. if we had to market mediation in just a few sentences, how would we do so?  This blog is worth a look.

Article: “Consider Mediation/Arbitration” by Stephen N. Barnes, Jr. (blog found at wordpress.com)
Summary: When drafting business contracts, make sure to include clauses that disputes will be resolved via mediation or arbitration. One short paragraph can save a client many future dollars.
Comments: Do all mediator/attorneys follow their own advice re ADR, when drafting contracts? The answer would be of interest to those in the mediation field.

Article: “Neutrals Reveal Tips With Their Opening Statements”/Lee Jay Berman (found at www.mediate.com)

Summary: This article, written for attorneys going into mediation sessions, states that mediators will give insights into their style, expectations, etc. via their opening statement. Is the mediator e.g. looking for a settlement or a creative solution? Since some mediators wish to hear the clients version of the matters, while others prefer to hear from the attorney, a foresightful lawyer will coach her client regarding what to say and what not to say. Many attorneys have never taken a mediation course. The opening statement of the mediator can therefore offer insights into the mediation process that will unfold.

Comments: While one might take issue with the concept that the “neutral” mediator will reveal something about her likes/dislikes via the opening statement, it is certainly true that mediators need to give much thought to how they plan to open their mediation sessions. Ensure that it is custom-made to your style and philosophy.

Articles on Divorce Mediation/Week of April 4, 2009

Marital Mediation for Family Mediators/John Fiske (found at www.mediate.com)
Attorney John Fiske practices and lectures on post-marital mediation. A couple may come to a mediator for a divorce, but might be willing to consider marital mediation instead. The concept of mediation to help couples stay married should appeal to those who view law as a means of bringing proper resolutions to contested matters. In this case, the resolution could not be a happier one. Such mediation can help negotiate terms for a more productive married life. Attorney Fiske seems to have had success in obtaining such mediated agreements even with couples who came to him with the idea of divorce mediation.
Comments: The idea of marital mediation is growing. The author does not make clear why this works when marital therapy has not worked. Neverteless there are practitioners of this new art, and websites do discuss this process. It obviously merits a look.

Mediation Saves Families Money/ Tyler Cobb(Blog at wordpress.com)
Most mediation blogs tend to be advertisements for a practitioner. This contribution by Mr. Cobb is not. It describes how the State of Utah began requiring mediation in divorce cases in 2005. The work of volunteer mediators keeps costs of divorce down in Utah. The resolution rate is estimated to be 60%-75%.
Question to ask:What would it take for your state to have a similar program, and what would be the reaction of local attorneys?

Divorce Lawyers–Are They in Control?/found at wordpress.com
The author of this piece summarizes, briefly, different roles for lawyers including that of the mediator. He suggests clients limit their costs by planning a tight agenda, keeping careful notes, and using phone conversations rather than in-person meetings with attorneys. This idea of using attorneys for their maximum benefit is an interesting take on how lawyers can be viewed. It is worthwhile to read and think about the perspective shown in this piece.

Articles on Mediation/March 2009

I have changed the title of this week’s post, so as to be more inclusive.  The topic will be mediation and not divorce mediation.  The articles will be of the current events variety.  Mediation works; that is why nations and groups try it.  Here are three news headlines from the last month:

“European Union Urges Slovenia and Croatia to Accept Border Mediation” (3/9/09)

“Iran Not Looking for Turkish Mediation with U. S.” (3/13/09)

“Polish Miners Now Ready For April Strike After Mediation Fails” (3/23/09)

Mediation has arrived! Even Iran needs to explain itself in its decision to overlook the mediation option!  It is rare to have a week pass without a mention of mediation involving countries, border disputes, and groups pitted against each other.  Try some word searches if you are skeptical about this. 

Why are countries trying mediation to settle age-old disputes?  Because it works.  Even Kaddafi of Libya tried his hand at mediation this month, in Mauritania.  As the miners story reminds us, mediation does not always work.  But even when it falls short, a subsequent settlement becomes more likely. 

Mediation’s popularity is growing and is getting more attention.  You may wish to find some articles and put them in your mediation newsletter.  Mediation deserves the good press it invariably draws. If it’s good enough for Mr. Kadaffi of Libya…

Articles on Divorce Mediation/Week of 3/23/09

Article:Debunking Mediation Myths/Stephen Kruis (posted at www.niacr.org)

Summary: Attorney Kruis succinctly debunks certain perceptions about mediation. One such myth is that certain cases cannot be mediated. Kruis feels that with enough information, all cases can indeed be mediated. Another concern he addresses is that ex-parte communication is always improper. Attorney Kruis finds that in mediations this rule will not be applicable. Yet another debunked myth is that failed mediations will lead to litigation. This is false as most cases do indeed settle. Some cases simply require additional effort after the first mediation attempts have stalled.

Comments: While I do not agree that e.g. custody cases can be mediated, this article points out the danger of making overly broad statements and being convinced of the wisdom of popular conceptions. For most mediators, their life experiences will be their best guide.

Article: Don’t Get Hung Up on Fairness/Judge Roderic Duncan (posted at www.divorcemag.com)

Summary: Judge Duncan has thought much about divorce proceedings and fairness. His conclusion is that divorce laws will always trump a judge’s feelings about fairness. If you want a fair resolution of divorce matters, you may point out to clients that mediated agreements will be upheld very often, even where they are in conflict with existing laws. (Child support is a notable exception.) Since laws are made by legislatures, the inherent fairness of such laws will be dependant on legislators. These individuals often fail to appreciate the “tangled web” of human emotions, that are seen daily by divorce judges.

The advantage of a system based on law, and not fairness, is that the predictability of outcomes, due to underlying legislative mandates, will often lead to “fair settlements”.

Comments: a refreshing article, dealing with the intersection of law and fairness. Interesting reading.

 

Article:Top Ten Ways to Protect Your Kids From the Fallout of a High Conflict Break-Up/Joan B. Kelly (posted at www.mediate.com)

This highly readable article, oulines 10 suggestions to protect children in a divorce situation. Among the suggestions are:

Talk to Your Kids about the divorce. Only 5% of parents do so.

Shield your kids from the divorce conflict. Children should not be drawn into a bitter divorce battle.

Manage Your own mental health. To help our children, we need to be healthy in all ways.

Dads should stay in the picture. How many times have we heard this reminder, which still needs repeating?

Discretion about future love interests is crucial. Our children do not need to meet every future date or meet every love interest.

Comments:Children’s feelings get overlooked, too often, in divorce sagas. This article reminds us of easy rules to negate the likelihood of their being harmed unduly by divorce proceedings.

Articles on Divorce Mediation/Week of 3/16/09

Article: Reasons for Divorce/Brette McWhorter Sember (posted at www.divorcemag.com)

The article is excerpted from a book on divorce, written by the author. A number of reasons for divorce are outlined. The prime factor in divorce seems to be “growing apart”. This factor can be dealt with, if the couples choose, by marital therapy. Factors that do not have such an obvious option, are adultery and substance abuse. The money factor is a major cause of divorce. (This factor will likely grow in importance as the economy continues to struggle. However, articles have appeared that speculate that the economy will actually lead to fewer divorces due to the lack of funds available now to many couples. How do you pay for an attorney, when you can’t even pay the rent?)

Comments: Attorneys need to consider when to refer clients to professional counsellors. Reconciliations do occur, and attorneys first and foremost must ascertain if the option of divorce is inevitable.

 

“Obama the Negotiator:The Strategic Use of Anger/Robert Benjamin (posted at www.Mediate.com)

The author of this article, like many Americans is angry about the AIG  federal loan. But President Obama has stated that we “cannot …govern out of anger.” This is no time to remain calm, according to the author. Presidential anger will show concerned Americans that we are all “on the same page”.  Can we order up some anger?

Comments: The article raised the issue of the mediator showing emotions to move a mediation along. When is anger, disappointment, etc appropriate. I suspect there are more answers than we can imagine. Mediation styles are very personalized. What works for some, will not work for others. Anyway, as my teachers stressed, sometimes a good question is worth more than the subsequent answer. The author provides food for thought for those who have chosen to mediate disputes.

 

Article: A Glimmer of Light:Divorce Breakups May Not Feel as Bad as You Think/Rina Goodman (posted at www.navigatingresolutions.com)

Divorce involves shattered dreams and losses. Yet for many, the impact of divorce is less than they had imagined. Why? The author ascribes this good fortune to “impact bias”, i.e. the tendency to overstate the impact that future events will have on our emotional state.

Two factors in impact bias are the ameliorating work of our psychological immune system (i.e. Rationalizing the divorce; e.g. We weren’t getting along anyway) and the buffering effect of intervening events such as the support system provided the divorcing individual, by relatives and friends. The author leaves us with the hopeful note that we are more resilient than we would otherwise believe.

Comments: If we can convince our clients to take divorce in more realistic, and less histrionic terms, we can focus on what they truly want and need. We can also get them to focus more on the civil and decent approach of divorce mediation. We need to take our clients from being rooted in past hurts, to planning their future and that of their children. This is where divorce mediation exerts a powerful impact.