Tuesday, July 30, 2013

Sometimes at an impasse things begin to move

Sometimes when I think that a mediation is about to reach an impasse, the parties begin to realize that they to begin to re-think their positions.

At the last several mediations, after we have been working for 4 hours, and no one wants to compromise, I begin considering "throwing in the towel".  I begin "pushing" each party to "think outside the box".  To realize that if we don't settle today that they will be incurring additional legal fees for trial preparation.  They will be investing more emotional time and energy in their case.  What is their time and emotional investment worth to them?

(The facts of one mediation are changed a bit but this is a classic example of waiting too long to negotiate in good faith...) One man held firm no matter what I suggested at a recently mediation.  He would not budge on any issue.  He wanted what he wanted and that was it. There was no room to negotiate...period.  The other side made several attempts to begin the negotiation process...but every offer was shot down flat - it was his way or the highway.  After 8 hours I called am impasse.  (I was tired of beating my head against the wall.)  The man would not listen to reason.  His attorney could not reason with him either -- this man wanted his day in court!  He kept repeating that "he wanted to tell it to the judge." The wife and her attorney left. Only then did the man beg me to call back his wife & her attorney.  He was willing to negotiate! I told him that it was too late.  He then demanded that I re-open negotiations!  Again, I told it was too late.  Even his attorney told him it was too late.  He was truly shocked that the mediation was over.  He was willing to re-visit every issue that he had refused to budge on for 8 hours!  There were tears in his eyes.  The man was absolutely terrified of going to trial. He said he would do anything not go to trial.  Suddenly the reality of trial and the reality of his stubbornness hit him in the face like a glass of cold ice water.  His attorneys said that he would call the other attorney the next day & try to re-open negotiations.  I suspect that this case was quickly resolved by the 2 attorneys without the necessity of another mediation.

Why do I bring this up?  Because often people come to mediation with unrealistic expectations. They come without any intention of compromising.  They arrive without having thought of ways to resolve their case.  Most people have not considered how to divide their property and/or their debt.  Their divorce has been pending for many months, but it has not occurred to them that the property and/or their debt is eventually going to have to be divided.  Now the ugly reality of the property division is in their face.  I am the person shoving the reality of life into their face.  They can no longer avoid the reality of the debt division.  They don't like me for shining the light of reality in their faces.  I don't like it either!

The ugly truth is that most couples can live better together.  When they split up, it costs more to maintain two households.  Instead of having two incomes to pay one mortgage, utility, etc. now they have one income to pay the rent, utility, etc.  And then there is the credit card debts...restaurants, medical, gasoline, car repairs, emergencies, department stores, shopping, kid stuff, entertainment, trips, etc. Ouch! It is truly painful.  Sometimes there is just no good answer. Sometimes we just do the best we can.  I can't make the numbers "magically" look better than they are - sometimes they just stink no matter which column I put them under - the wife's or the husband's.  Sometimes I have asked if the couple has thought about just living together as roommates and splitting expenses since they cannot seem to make it alone.  They never agree to stay together -- but they always agree that it financially it makes sense on paper.

I've recently thought about just declaring an impasse after an hour & then seeing if it makes people begin thinking earlier about negotiating harder.

The other day, I thought about declaring an impasse after 4 hours.  Only then did I "pull up my sleeves" and "dig in harder" to try to make the pro se couple work it out.  It was still their mediation process but I helped them "see the light".  They just needed a bit of a push to get there.  They were not that far apart.  I hated to see them not settle & spend all their money on attorneys.  Eventually, both of them gave a bit & we were able to settle the case.  I warned them that neither of them might not like me at the end of the mediation.  I "pushed" them both to try to settle.  I think that sometimes as a mediator I have to make people "uncomfortable" & make them look at "unpleasant" options.  In this case, I made them look at what litigating could cost them & how much litigation could cost both of them - time & their emotional investment.  In this case, I think the emotional investment of continuing to fight was how I settled their divorce.  This couple did not "hate" each other, they had grown apart and were still civil to each other.  They were both very business-minded people and both wanted to leave with some money in their pockets, so I was able to show them that hiring attorneys and litigating could end up being an expensive proposition since attorneys can get out of control easily.  I wanted this couple to be a win-win & not end up "hating" each other at the end of their divorce.  I think mediation allowed them to end their marriage in a civil, dignified manner.

After being a mediator since 2003, I still firmly believe in this process.  It is a much better alternative than litigation.  A "messy" mediation is still much better than a "clean" litigation any day of the week.  In litigation, I suspect that the only winners are the attorneys since they tend to get a nice paycheck at the end of the day.  In mediation, usually the solutions are much more creative than litigation.  Most of my mediations are very different than the TX Family Code could ever do.  Sometimes they are nothing like anything that the judge could ever do from the bench, especially regarding children.  Sometimes I am able to work with really good family law attorneys that help facilitate the mediation process for everyone involved.  When this happens it's a really good day.

My practice has been growing because some family law attorneys like my style. Even when I don't settle, some attorneys will use me again and again.  They know that I'm fair and that I work really hard.  They know that I care about the kids.  They know that I seek the truth.  They know that I want to know what is really going on in the case & that listen to what both parties are telling me.  The attorneys know that I treat both parties with respect.  They know that I don't favor either side.  They recognize that I will advocate for the best interests of the children.  I don't rush the mediation process.  They know that I will do my best, but if I won't keep people just to bill extra hours -- so then I'll just declare an impasse.  They know that I'll try different techniques to settle.  Most attorneys will work with me & trust me to use my judgement.

The mediation process is a process.  It takes awhile.  You must let both parties talk.  In mediation training, I've been taught to let the process do it's job.  It is magical when it works.  I take my ego out of it.  It is not my mediation.  I am a facilitator.  At the end of the day, I don't care of a case settles or not.  I have a high success rate, but I will not force a case to settle. Some cases should not settle.  Some cases should go before a judge.

Plus, many times I hopefully plant a few seeds for better co-parenting in the future.  There are a lot of good parents out there...thank goodness...we need to encourage and celebrate good parents every day of the week. God bless them.

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