Is this therapy?
No. While introspection is helpful to the process, neither personal nor relational growth is the objective here. The goal is simply to help the parties to resolve issues. However, when clients come to understand each other’s experience, solution emerge that meet both of their needs. This understanding is achieved through facilitated conversation about the specific issues that the parties are trying to resolve as well as other matters which frame their views of each other. The scope is broader than traditional legal inquiry—at times focusing on undisclosed motivations —but far narrower and less probing than therapy. The goal is to resolve issues. Healing is often a welcome by product.
How can you just get two people to understand and care about each other when they clearly don’t like each other? Can understanding be forced?
Asking a person who is either angry or hurt to understand the experience of one who has caused him/her discomfort can be both fruitless and insulting. Understanding cannot be forced. However, when people who are caught in dispute— particularly emotional disputes—receive a bit of understanding themselves, they are often surprised by what hides just beneath the surface: a desire and ability to authentically understand the experience and impressions of this other. The process does not begin with understanding, it winds up there. It begins simply with a need to be heard and sometimes also a need for clarity—How did the situation come to anger? Why does this other see things so differently than I do? The process unwinds with hitches and difficulties and ah-ha’s and releases. Often deep understanding (empathy) is neither the objective nor achievable. But bitterness and blame can almost always be left behind. And relationships can resume respect, if not outright warmth. (See Philosophy of Understanding page.)
We already agree on many issues and aren’t that angry with each other. What would the process look like for us?
Where the relationship is solid and the parties simply seek resolution of certain well-defined issues, the process is less involved and is focused primarily on seeking solutions. At this stage it resembles Mediation as typically practiced. However, if strong differences arise (which they often do), we will use your already-existing foundation of understanding to bridge intellectual and emotional divides.
If seeking a peaceful resolution is so compelling, why do most people end up fighting it out in court without even trying mediation?
This may be the most valuable information on this website. That’s because it can have a dramatic impact on the lives of the people who contact me. .
I receive many calls and emails each week. Far less than half of those initial contacts actually end up seeking mediation. Sadly, despite the initial conversation, the vast majority end up spending enormous financial and emotional resources hiring lawyers and fighting in court. Why? Because the individual who seeks us out cannot decide alone to seek a peaceful resolution. Initially, the other person is often quite surprised and disappointed that any form of legal solution is even being considered. And so, the other person (the person who does not contact me) often will consult with a litigation attorney. After all, having heard some tough news recently, their trust is diminished. He/she has a natural need for clarity about the law and might really desire protection.
The problem is that any consultation with a litigator normally leads to full-scale litigation. That’s because the litigator will tell his or her prospective client exactly what the client most wants to hear: (1) you are in the right; (2) I will try to resolve this peacefully; (3) I will vigorously defend you if need be. Once this litigator is hired, the side who was initially seeking a more peaceful resolution will likely also hire a litigator (for protection). Now, the process of litigation might start out
amicably, but since a judge (a third party) is the person who is making the decisions, each side has an strong incentive to convince the judge that the other side is in the wrong. And so, eventually, in some court pleading, a little bomb is
dropped by one side. The other party, in attempt to protect himself/herself, naturally strike back, and ultimately and quite naturally, a full-on war develops. In the end, neither person will end up with any peace or financial security, and the
attorneys will end up with a large percentage of their clients’ assets. It’s not that litigators are bad or selfish people. To the contrary, they are normally sincerely interested in protecting their clients. It’s more that the judicial advocacy system is not designed to preserve relationships. It is designed for one-side-takes-all war.
If you are visiting this website, you are likely the person in the relationship who is interested in a seeking a peaceful resolution. And you may be discouraged by what you just read. Please don’t be. You can avoid the terrible trajectory we’ve described. This is what we recommend.
First, despite how you may presently feel about this other person or their intentions, be as cooperative and open as you can. That means not taking any legal steps (such as filings) without first informing the other party. Those types of
surprises almost always direct people toward litigation. That also means, when you do discuss your intentions with the other party, completely rule out litigation. Share what you have learned — that litigation frequently ruins lives, and almost
always destroys relationships. If possible, try to develop a plan together. If you both have a need for clarity about the law, schedule a consultation with a lawyer or mediator together. This openness sets the tone for cooperation. About 50% percent of the time, if you approach the other party with this openness, he/she will also be interested in mediation.
Second, in the other 50% of cases, don’t give up. That is, it is my experience that even where the other person is too angry or scared or hurt to presently agree to a ‘peaceful’ process, your intention will make all the difference. If you decide that you will get through this peacefully and that you will not be drawn into a legal conflict, you will likely avoid it. Suggest to the other person that he/she speak alone with me or another mediator or visit this website. If he/she is still not interested, consider involving a friend or family member or clergy member or therapist who understands the costs of litigation and the life-enhancing benefits of seeking understanding. Be gentle with your recommendations and allow for progress to be slow. The other side may still seek out a litigator (for advice), and so your intention must be strong, constant and gentle. Despite break-downs in trust, unless you believe imminent legal or physical harm will come to you, I recommend resisting the temptation yourself to hire a litigator/warrior. Like anything else in life, if you firmly and deeply decide on the trajectory you will take, your life will normally follow. Of course, you cannot force the other person to join you along this path. However, in my experience, patient and peacefully-made calls for peace are eventually headed. After all, ease is something all people are seeking.
Why do some mediations succeed and others fail?
My experience in mediation has taught me something very basic but extremely important about conflict resolution: those who succeed in mediation are simply those who do not give up. It is a choice that everyone, irrespective of the difficulties facing them, can make; and as a result, everyone can fall into this category.
The types of cases which I mediate (where there is a personal relationship and a legal dispute) typically involve complex issues and longstanding pains. And here I am asking these people, who didn’t succeed as they had hoped in their relationship, to work together to resolve a legal conflict, often involving multiple issues. This is a tall order. Add to this that the mediations can span several weeks, months or sometimes years. In that time, of course, lives continue to unfold, with new thoughts and challenges arising. As a result, at some point in nearly every mediation, an emergency develops. Typically because of some dispute outside of the mediation itself, one client or the other loses hope and believes, if only for a short time, that the mediation cannot possibly work, that his/her needs will not be met, that he/she would be better off turning this over to an attorney.
And yet, the vast majority of my clients (95%) conclude their mediations successfully. Why? Because they understand that the loss of hope, and indeed full-on doubt, is absolutely normal. Since clients are prepared for that moment, they
usually do not act upon their inclinations to seek legal protection. Rather, even given their deep concerns, they return to mediation, and when they do, they find solutions to that which brought them to the brink. If one person had concluded
the other could not be trusted, that assets may be hidden, we deal with that issue head-on. Perhaps we will find strategies to rebuild trust, or if not, maybe agree to some form of verification. Whatever the case, the parties will again
seek a solution to the issue together. If one person concluded that there simply isn’t enough money to support them both and so war is inevitable, we seek to understand that despair, and that understanding itself will open opportunities to
work together. It is by simply sticking with the mediation, irrespective of how tempting it might be to seek temporary shelter in the office of a waiting attorney, that clients avoid the terrible alternative: war in court. It is not easy mediations
that succeed. It is those where clients have tolerance for the challenges, internal and external. Like in most of life’s ventures, success in mediation is a self-fulfilling prophecy.