“Litigation will give me everything I want”
Clients often believe that they can “win” by going to court, and therefore it may be contrary to their interests to participate fully in mediation. Three other misconceptions often underlie this belief:
- First, that his or her case has a very high probability of success. Unfortunately, lawsuits are fuelled by the fact that almost everyone feels that way. Lawyers often present best-case scenarios, or clients “hear” what fuels their optimism. Since 95-98% of cases settle, why not reach agreement at an early stage — before you have spent the big litigation bucks? An objective risk assessment would protect many people from spending their savings and years of litigation only to be disappointed, frustrated, and in debt.
- Second, that the ideal is “winning” and having the other person “lose”. Divorcing couples pass through many stages of grieving and often litigate when angry. Later, they regret their actions when they enter the stages of sadness or eventual acceptance. Most importantly, litigators never consider the downside of winning — namely, that the partner whose cooperation is critical for their ongoing relationship with the children or for financial support will no longer be willing to offer assistance.
- Third, and most important, is that those who choose an adversarial course of action often have not reflected on the damage to children from living in a high-conflict zone. Conflict between parents is the most damaging factor for children of divorce. If you are fighting for the children, it is rarely in their interest.
Dr. Barbara Landau, president of Cooperative Solutions, is a psychologist, lawyer, and mediator in Toronto. She assists parents to reach fair agreements in the best interests of their children.
When your ex behaves badly
Poor behavior is the signal that someone feels badly, as divorce mediation is fraught with complex grief issues. One reason for poor behavior is that — although clients realize intellectually that mediation requires empathy, and a conciliatory approach — our society still operates aggressively. Many clients come to mediation after long sessions of litigation, and it is difficult to switch gears into a more cooperative way of thinking.
It’s important to address grief issues in an educational way. Divorce is like a death, and mediators need to support clients by managing their grief — including all poor behavior, which is only the top layer. A good mediator will help clients deal with the difficult realities of divorce.
The mediator needs to teach assertive, not aggressive, ways to interact. He or she shouldn’t try to educate clients until some serious grief work has been undertaken. Listening to someone else in a respectful way is difficult; it takes skill and respect for the other person. Until grief work is done, successful learning of new, assertive ways to communicate will not happen.
Threats are made often in negotiation, either overtly or subtly. If not diffused, they will undermine a fair mediation process. It is important to try to understand why a party may choose such tactics. Understanding the reason will help the mediator and the parties deal with the behavior constructively. Reasons for making threats and ultimatums include:
- Lack of skill. Few people are skilled at negotiation. Even skilled negotiators can “lose their cool” in an emotional divorce and resort to threats or ultimatums. In these cases, the mediator’s job is to work with the parties individually and help them learn better negotiation skills.
- Lack of confidence. If there is a real or perceived imbalance of power between the parties, the person who feels out of control, overwhelmed, or powerless may use threats and ultimatums as a way of gaining back some power. In such a case, the mediator might work with the parties separately and together to address the issues of balance, fairness, and empowerment in a an open and honest way.
- Bullying. Some people use bullying tactics to try to win in negotiation. The mediator should carefully pre-screen parties coming into mediation to learn about any history of emotional or physical abuse or intimidation, mental illness, or personality disorders. If a person uses threats as part of a pattern of abuse, there may be little the mediator can do to help the parties conduct a fair negotiation. A referral to a mental health professional may be the most help the mediator can offer.
Hilary Linton is a mediator whose practice, Riverdale Mediation, serves Toronto and southwestern Ontario.
Lack of preparation
Lack of preparation can be a major barrier to mediation. It takes various forms, such as failure to become fully conversant with the file, or to get the necessary information such as property and pension valuations and current investment statements. More significantly, there is sometimes a lack of information about the needs of the children and the options available concerning their education, health, and special needs. A further barrier is the clients’ lack of understanding of the process. They fail to appreciate that there are alternatives to a strictly “legal” position that lead to a greater range of outcomes. This barrier is not necessarily evident at the outset, whereas the lack of “hard data” is immediately evident.
Since mediation is a voluntary and unstructured process, any and all of these barriers can be overcome, but the process takes extra time. Identifying the barriers (otherwise characterized as challenges) and working with both the parties and their lawyers to develop a common understanding allow the mediation to unfold. The mediation then becomes a valuable process. The information is made available and the full range of options can be considered and decisions made.
On the other hand, the absence of extensive calculations and carefully developed positions can be an asset. If an inordinate amount of time has been invested, these can deter negotiations because of the parties’ time and emotional investment. Fixed positions can make mutually acceptable outcomes harder to achieve.
Mary T. Satterfield is a retired lawyer, social worker, and mediator who practiced family and estate law exclusively. She is the co-author of two books for non-lawyers, Law for Social Workers: A Canadian Guide and The Law and Volunteers.
Failure to understand and prioritize the interests of you and your ex
People often start negotiations with extreme positions out of fear that they will have to compromise and end up somewhere in the middle. When positions are opposed, negotiations may grind to a halt. Even if an agreement is reached, it may not be a good agreement, let alone the best possible one.
The best way to reach a settlement that satisfies both people as fully as possible is to focus on interests, not on positions. Unlike positions, interests can be satisfied in many ways; compatible interests often lie behind opposed positions.
What, then, are interests? Interests are the needs, desires, concerns, and fears that motivate people. Interests can be substantive, such as the amount of child support or the specific parenting schedule. Interests can be psychological, such as the value placed on maintaining a good working relationship with a co-parent or the need for closure. Interests can be procedural, such as whether support is paid by direct deposit rather than by a check or the pace of the settlement process. Positions cannot capture the wealth and depth of our real concerns. A full understanding of the interests of both people is the first step to resolution.
While the benefits of uncovering interests are clear, accomplishing this is not so easy. Here are tips for understanding your own interests and those of your ex:
- Before you begin to discuss a problem, think about and write down your own interests. Ask yourself: “Why is this outcome important to me? What goals would that satisfy? What are my objectives concerning this, both in the long and short term?” Next, consider and write down your ex-partner’s interests. Putting yourself in his or her shoes, attempt to develop an understanding of what he or she might really need or want.
- Once negotiations begin, start by demonstrating that you appreciate the other person’s interests and want to understand them fully. This increases the likelihood that your ex-partner will be interested in appreciating your interests.
- Put the problem before the answer. People often rush to conclusions and give their interests and reasoning later. If your ex believes that you already have a solution to the problem, she may never listen to your reasons or needs.
- Maintain a forward rather than backward focus. You will have a better chance of satisfying your interests if you talk about where you would like to go rather than remain mired in the past.
- Be concrete but flexible. Stay open to fresh ideas, and try not to assume that you already know the answer.
- Attack the problem, not the other person. Try not to judge your ex or to change his or her perspective. Good agreements satisfy the interests of both parties. They aren’t about who is right or wrong.
- Interests must be prioritized. Both parties must understand the level of importance that each attaches to each interest. Interests of low importance for one person can be traded for interests of high importance for the other. It will also be possible to see many shared interests.
Moving from positions to interests will help create the best possible agreement that meets the needs of you and your ex.
Victoria Smith practices mediation and collaborative law in Peel and in Toronto. She is the co-author of Collaborative Family Law, Another Way to Resolve Family Disputes and trains lawyers in collaborative law and mediation.
Failure to disclose important information
There is a communication game that has been played by many people over the years. In a game of “Broken Telephone,” a message is passed from one person to the other with the hope that, when the last person receives the message, it will be identical to the message sent by the first person. Time and time again, the content of the message is very different from that at the beginning. This is the result of people not listening carefully to the message and at times including their own interpretation.
In most partnerships, whether it is a marriage, a relationship, or a business, important information is disseminated among the members in many different ways: either verbally, non-verbally, or through a key member of the partnership. This information is at times misinterpreted. When information is withheld or not properly disseminated, it creates unnecessary tensions, which can lead to anger and resentment. The stress of a separation or divorce has the potential for parties to withhold information from each other.
For example, in a divorce, if questions are asked about the children’s progress in school, or their medical status, or about finances pertaining to the marriage or partnership, and the information is not readily available or easily accessible, or a party is resistant to providing the information, this is a clear indication that some information is being withheld. But sometimes, information is withheld because of fear or uncertainty regarding how the information will be used. The lack of cooperation often results in verbal and/or physical confrontations or use of the adversarial process that can destroy what is left of the relationship.
It is important to stay calm and approach the resistance in a positive way. Ask yourself: “What information do I need and why? Is it necessary? Will it bring closure to the situation? How might the other party respond? Do I have access to the information, or can I obtain it myself?” Arrange to discuss the situation with the other party. If this is not successful, request the assistance of a neutral third party and then a more formal process such as mediation. Use the adversarial approach as your last resort.
Antoinette Clarke is a Certified Family Mediator with 20 years’ experience. She runs Counselling, Consultation & Mediation Services in Mississauga.
Issues cause an impasse to mediation, such as when one party in the mediation tries to use a “trump card” over and over again. Often, one party will try to use a sensitive issue to control the mediation. The trump card will be something they think they could hold over the other person, in or outside of mediation. That person is usually anxious to tell the mediator all about it in the screening session. Yet when confronted with the idea that due to the trump-card issue mediation may not be the right forum for sorting things out, he or she then downplays the issue and wants to continue with mediation.
During mediation sessions with the ex-partner, the person will throw out the trump card like a controlled threat. In one mediation I facilitated, for example, when the husband thought he was losing some ground, he would suggest that the wife was mentally ill, yet he was willing to agree to equal time caring for the child. When confronted with the dichotomy of his position — how he could agree to the child being in the mother’s care for a great deal of unsupervised time if she were really mentally ill — and asked by the wife to demonstrate evidence of any mental illness, the issue died down. (Of course this was a case where I was not concerned about the mother’s mental health. If there had been a concern, this course of action would have been inadequate).
Debra Rodrigues is the director of Peel Counselling & Consulting Services in Mississauga. She has over 17 years’ experience as a Custody and Access Specialist.