Two attorneys in Portland recently asked me to mediate a divorce case. They told me I was their choice, because, in their words, “This was a case where their clients needed a mediator to listen to them.”
These lawyers are highly respected in Portland, but their remark made me stop. Although I didn’t say it out loud, I wanted to ask: When do clients not need a mediator to listen to them? And what type of mediators do not listen to the clients?
Eventually, when the case was over, I did ask whom they usually hired to mediate their cases. The lawyers said they liked to hire mediators that “just tell the clients who would likely win at trial and then puts pressure on the clients to settle.” I knew the mediators. One is a retired judge in our community, and two others were traditional family law litigation lawyers.
This style of mediation is one that traditional lawyers feel most comfortable with because it retains important features of the adversary system. Although the case is not tried in a court of law, the lawyers treat the mediator like a judge at trial and argue facts and law in an attempt to persuade the mediator-judge to their side. The lawyers then want the mediator-judge to emphasize to the other side the risks of losing so that the opposition will grow fearful and settle. (And sometimes, they send signals to the mediator-judge that they want pressure applied to their own clients.)
In this approach, which I call Mediation by Virtual Trial, we can easily see why listening to the people in conflict is not important. The agreement is largely imposed on the disputants, as the agreement is based on the legal predictions of the mediator and his/her generation of dissonance (fear regarding the risk of loss). In this setting, the thoughts, feelings, wishes, plans, fears and concerns of the participants might be given quick air time but are essentially irrelevant, and therefore not truly considered or probed. Usually the parties do not participate significantly in the negotiation process; rather, the professionals (lawyers/mediator) dominate negotiations. In fact, the parties are usually not put in the same room and do not speak with each other; instead, the mediator shuttles back and forth between rooms serving as an intermediary for negotiations.
Why Listening Is So Important
There is certainly a time and place in some mediations for an evaluative opinion, especially where the parties are at impasse and seeking a recommendation from the mediator. But lawyers and mediators, who routinely impose agreements on the parties using what is really a more sophisticated version of the same power dynamics that characterize the adversary system, miss important opportunities.
They miss, first, the chance to allow people self-determination, which is one of the primary principles underlying mediation as a conflict resolution tool. Most people do not like being told what to do, much less pressured into agreement. I often hear people say that they settled their case but felt coerced into doing so, and therefore retain resentment. You often hear professionals say the mark of a good settlement is when both sides come away feeling equally lousy. More likely, the negative feelings result from a failure to listen deeply enough and to explore the parties’ needs and interests.
Rather than imposing solutions on the parties, professionals can instead support the parties to discover and create their own solutions. Such Client-Centered Mediation leads to more satisfying and durable settlement agreements, because people will take responsibility for settlement terms of their own creation that incorporate those factors and ingredients that are most important to them. They like to determine for themselves how much weight to give to expected outcomes under the law. When they reach what they consider a subjectively “fair” agreement, they are much more likely to be satisfied with the process and the substantive terms. This is especially important for disputants who have a long-term relationship that will continue after the mediation.
To do that work, however, professionals will need to give importance to the act of listening. Listening with an open, compassionate, and non-judgmental heart means being fully present and attentive to the person who is expressing his or her deepest concerns. It does not mean listening with an ear towards slotting everything said within the framework of a legal argument.
What I Know To Be True
A few observed “truths.” Everyone in conflict feels, to some degree, fearful and defensive. Everyone in conflict feels misunderstood. Everyone in conflict wishes to be completely understood. Heard. Accepted. Connected. These are basic human needs that we all hunger for, and that go missing when we find ourselves in conflict.
There is no greater “felt” connection between human beings than the feeling of being understood. It is palpable. The very air in the room changes when a person who was full of fear, blame, and defensiveness finally feels heard. She exhales and relaxes her shoulders and jaws. Ice thaws; disconnection melts, even if disagreement persists. Connected again and more relaxed, she finds space for movement and the flexibility to brainstorm options and locate solutions that fit mutual needs.
This style of mediation is respectful. It is not imposed by professionals but emerges from the disputants. It is created out of the raw materials that come forth from people in conflict who are supported in their efforts to take responsibility for resolving their own conflicts.
On the wall of my office hangs a calligraphy by zen master Thich Nhat Hanh that says simply, “Listen with Compassion.”
I consult its wisdom regularly. Listening with Compassion. There is nothing I do as a mediator that is more important.
For help negotiating divorce and other family issues without a nasty legal battle, contact us at Dwyer Mediation & Law.