“I have been there for my child since day one” she cried.  “Every time I come here, I have to cave-in to his demands.”  The couple had emerged from their divorce with joint decision making, but parenting time had been slightly in mother’s favor by a few days each month.  Now her child was in school, and the father was asking for week-on-week-off.  She had responded with “hell no, he can have every other weekend!”  She had also asked to be the decision-maker whenever she and he disagreed on anything concerning the child.
 
Help me understand, I said to the attorney representing mom, what is the basis for letting her call the shots?  There is none he said, I’ve told my client that we can’t win in court.  Even so, mom steadfastly said the father was just not a good dad.  She refused to be in the same room as him.
 
In father’s room, his attorney was outraged at the response.  This is not helpful he said.  We do actually want to settle this.  They made a kind offer, not backing off equal parenting time, but offering to set in stone some agreements on a variety of prickly contentious issues.  These were deals that mom could not expect to get in court.
 
Back in mom’s room I was met with floods of tears.  Calm returned for a while.  We talked through the agreements father was willing to make to get this settled.  There was a commitment to a school district, some pick-up and drop-off driving, and even generosity with expenses.  Mom began to show some inkling that she was empowered here.  She could get things in mediation that were not available elsewhere.  What she utterly lacked was any empathy or recognition of the world from father’s perspective, or even her child’s.
 
An expert had written a long report on the family.  Mom disagreed with the Ph.D. lady who had recommended equal parenting time.  The expert commended them both as good parents.  I thought mom’s position was doomed if she went anywhere near a courtroom, but I did not say that just yet.  Her attorney had been saying that to no avail.  Father and his attorney were just not feeling any need to budge, except to get this over with.
 
“I know I am going to lose” said the mother, “but if I go to court there is just a chance I might get what I want – isn’t there?”  She left the room to take a cigarette break. When she came back I reminded her of all the deals she had to gain from the mediation, things she would loose after the day was over.  There were more tears, and she had to go call her mom.  Knowing looks were exchanged between me and her attorney.  When she came back, I left the room to give them some quiet time together.  I let him finish her off.
 
I’ll sign she said when they emerged.  She looked crushed, as if dragged through a hedge backwards.  In the other room they wondered what took her so long.  From the case management perspective of the trial courts, this was just another successful settlement.   A trial with lengthy expert testimony was vacated; a vindication of court ordered mediation!
 
My colleagues who espouse a transformative approach to mediation would see this as the very worst that the courts have to offer, not even mediation by their definition.  The underlying conflict was still intact, not addressed, and certainly not transformed in any positive direction.  To the extent that this type of mediation is typical, I agree that the courts and legal system could do better in many cases. 
 
Most people are engaged in society; they have a consciousness of self and their relationship to others.  Transformational mediation draws upon this to not only empower, but also facilitate a shift to a place where the parties recognize each other’s perspectives and interact positively.  The promise is that the dispute can be resolved at a deeper level that may also reduce future trips to court.
 
The reality is that not everyone comes to mediation able to relate like everyone else, and I think the mediation style has to match the participants.  This mother was so self absorbed and sure of her world view.  It was as if the empathy gene was missing.  The lady with the Ph.D. had commented about that too. Adjudication and arbitration can totally disempower, and that was the alternative that eventually, even mother foresaw.  She actually did a little better, and certainly gained more control by signing off on things with her own hand.
 
I have mediated other cases after the courts have delivered a crushing blow to a parent.  One that they have never accepted, returning to litigation year after year.  Set against that prospect, the result in this case was not a completely bad outcome.  Perhaps even a worthwhile one.  The key public policy question is how hard mediators should push, especially in the much more typical cases where neither party has an attorney to assist them.  How deeply do we expect mediators to understand the dynamic in front of them when a GED is all that is required in terms of formal education?
 
At best, I think this was a “satisfaction story” of utilitarian misery minimization.  Mom was miserable.  Each party felt the money that they had paid their lawyers.  This would not be the end of it, but perhaps they had bought some time. To the extent that mom had caved because of a legal evaluation of her position, she had been disempowered, but perhaps not as badly as could have happened in a court room.  However, she certainly looked oppressed at the end.

One of my scary days as a magistrate was when a police officer appeared in full uniform, carrying a side-arm.  He was a litigant, fighting against is former spouse in court.  It was a tense case.  Courthouse security is supposed to protect everyone against people bringing weapons to court, but it is a loophole that law enforcement is usually allowed to testify in full regalia.  Officers are supposed to recognize the difference when they are testifying in the public interest, rather than in their own, but they do not always do so.

Some times litigants sneak weapons in.  I’ll never forget the guy who brought the broken bottle in.  His wife had held the bottle by the neck, smashed the bottom off, and threatened him with the jagged end.  The bottle was not metal, and it did not beep when it went through the scanner at security.  There it was in front of us in a small room when we were doing our status conference.  He just wanted to show me what she did!

Here is the point.  Of all the players, the courts have background information on litigants that mediators simply do not have.  Family Court Facilitators and others conduct initial status conferences and actually see the parties up close and personal.  These initial contacts are usually made before any mediator has contact with the case.  Even if the Courts prefer to issue blanket orders to mediate in all cases, it would be good if those orders were rescinded in appropriate cases.  Instead, I believe that the courts have abdicated any responsibility to protect the public and mediators through differential case management.  Today in many of Colorado’s judicial districts, the courts simply issue blanket orders to mediate in every domestic relations case, without any thought as to the potential dangers involved.  Often these orders do not advise the parties that the presence of domestic violence is a valid reason to object to the order.  It is usually mediators who have to figure out for themselves if a case is volatile enough to pose a threat to life and limb.

The Courts alone are protected by a secure line policed by sheriff deputies. I have requested space to mediate in one Denver metro court house, only to be told that all space was reserved for ODR mediators.  Today, the Supreme Court recognizes that ODR mediators mediate an ever smaller percentage of domestic relations cases.  That puts more private mediators and domestic violence victims at risk in less secure settings outside of the courthouse.
 
True enough, domestic violence is one reason for a victim to object to an order to mediate, but the vast majority of litigants are unrepresented, so the courts are asking unrepresented victims to know the law well enough to argue against an order from the court.
 
Minimally, private mediators must be allowed to hold court ordered mediations behind the secure line afforded by courthouse security.  Even if such a privilege were conferred on non-ODR mediators, it would only be effective where the mediator is experienced enough to know what to look for when assessing a case.  The current proposal for credentialing mediators requires zero actual mediation experience, let alone sufficient experience to recognize a dangerous case.  Unless the courts are willing to screen cases and exercise differential case management, I humbly suggest that the draft standards require perilously little on the job training.  I think the position taken by the Mediation Association of Colorado is more aligned with the public interest.

​“We have issues,” said the father as he recounted the turmoil at the police station.  This was where all child exchanges occurred.  It was so tense for him that he had stopped going, and instead he sent his new wife in his place.  She had given him an earful.

The ex-wife and mother of their son had some choice words about his new wife.  They all detested these exchanges.  These were tense door-slamming screaming and shouting matches.  The mother agreed with her former husband that they had some serious “issues.”
 
Miraculously, their son was doing well in school, and each parent claimed to be happily re-married.  Equally miraculous to the mediator, was the fact that both parents were recognizing and talking about their “issues” early in the mediation.  With some coaxing, they had been able to separate their problems from themselves as distinct “issues.” Neither parent was stuck on cataloging the personality flaws and failings of the other party.
 
Both parents, and their new extended families, were in enormous distress.  The mother had quickly revealed how having to interact with her ex-husband made her feel exhausted and physically sick.  He was passionate about never ever wanting to hear or see her; never again!  It was not a far stretch to point out to them that their “issues” were costly for both of them. They knew it.  “Are you interested in eliminating the issues,” I asked.  This was the key move and turning point where they became cooperative in their attack on the issues that divided them.
 
The father was insistent that he had been trying.  He had de-friended his ex on Facebook, changed his phone number, blocked her email, all as early steps before sending his new wife to the child exchanges.  His theory was to take himself out of the picture.  He now wanted his ex-wife to send someone else too.  That way their son could have neither of them around during the evidently stressful pick-up and drop-offs.
 
“How has that been working for you” I asked, referring to this separate lives approach.  His ex-wife was about ready to burst a blood vessel at that point: his distancing himself from her had just made her more and more angry.  “Who has decision-making for this child” I asked.  “The court order says we have joint decision-making he said.”  Surely he was joking . . .!
 
The fog of war was lifting for this father who was beginning to see that his separate lives strategy was not making the issues go away.  He was sure that he did want the stress out of his family life: he wanted the issues gone.  Now he was collected enough to consider some different ways to reach this goal.
 
This was a couple that readily accepted TalkingParents.com as a positive step in the right direction.  As a storyline for the future, the father would try opening up communication in a secure way, confident that mother’s every word would be in writing and plain for all to see if need be.  The ex-wife agreed to limit her contacts this way, and not call the new wife or otherwise do things that were taken as harassment.  She was happy to have an avenue open to communicate about their son.  That was her heart’s desire and need.
 
After building some initial rapport, my game plan in this narrative was to separate the problem from the participants.  That helped both parents express how much they did not like the status quo without attacking each other.  Then they could say how much they wanted the status quo changed.  That generated the possibility of cooperative problem solving, and it took the conversation away from either party having to admit any personal failings.  Each conserved their identity as a good parent and spouse within their new and separate families.
 
This only became a typical interests based mediation in its closing stages.  Early on, the key was to hear the stories of two people who converged on a narrative in which they were toxic with each other, but not with their child or the rest of the world.  The win-win or dividing-up the pie model of conflict often has to be abandoned to resolve emotionally intense disputes.  These parents needed to conceive a new story that included a vision of how they must continue to work with each other.
 
This couple committed to working on their toxicity issues.  They may be back to court in the future, but the mediation gave them the insight that there may be some respite within their grasp.  They had at least resolved the legal difficulty that brought them into the mediation. 

They were in separate rooms.  She had insisted that they stay apart because her husband was abusive.  She had bought a good friend to sit in with her for support.   They had retained lawyers, but she wanted to save money by mediating without them.

The details are not important.  There was an immediate fight-or-flight response to the first offer.  It was taken as insultingly low, and an old wound was re-opened by a counter that precipitated fury.   I’ve seen virtually the same scenario in joint sessions with lawyers, where the clients’ defensive reaction is to fight, or just flee the building.  These are the un-thinking immediate responses that occur in mediation when something touches a nerve or core value.  For some reason, nobody had anticipated this through pre-mediation preparation.

Such mediations are all amygdala driven and they often fail.  Doesn’t anyone see this coming?  About as far as some attorneys seem to get is to insist on separate rooms for tense clients.  The calming demeanor of the mediator can sometimes help save the day, but pre-mediation client preparation can add a great deal more.

Less frequently, I’ve seen parties in mediation who just have no concept of negotiation (period).  I’ve watched the hapless attorney explain that the client’s proposed offer won’t buy them anything because the other side is virtually certain to win that point in court, and everyone else knows that.  The parental responsibilities expert saw nothing diagnosable with the person’s mental health, but something was missing. Perhaps it was just the distress of the day, yet the concept of negotiating away something of value to get something precious in return was a seed left unplanted, and negotiations went nowhere except toward trial.

Then there are the clients whose belief’s are absolutely factual.  They have no concept that the facts in a legal case are what the judge believes, and not what the client knows to be true.  The facts in these cases are always different in the next room.  It comes as a shock that there will be no separate rooms at trial, and the judge will actually want proof if she is to believe anything!

These situations creep up on the most gifted attorneys.  I have recently taken a two-day basic training in Conflict Coaching, and that has set me thinking about how much more could be done to help mediation clients prepare for the difficult conversations that they will have to have in reaching a negotiated settlement.  Simply coming in with clarity about what is important would help in many cases.

The problem for the mediator is preserving neutrality.  It is the rare family law case where there are the resources to hold significant pre-mediation meetings.  A mediator cannot champion the individual clients the way that a coach or counselor can, and so it helps to consider coaching when the resources are there.

Lawyers can do some of this, and some do it naturally.  Figuring out how to cope with their emotional hair-triggers will help some clients.  Broaching the topic of uncertainty in court, and bargaining in the shadow of the law could all be usefully discussed before the mediation begins.  Scheduling the mediation after a cooling off period is a good idea, when one party or the other has just had a bad experience from a judicial officer, CFI, PRE or other report.  Even the validated party needs the other side to come into the negotiation mentally able to make a deal.

Drawing upon the client’s expertise about how the other party will react, can help plan how to get a message across.  Its not for every client, but getting the client to role play the opposing party may bring out enough detail to help counsel and client effectively put their points across without precipitating a mediation-terminating melt-down that send’s everyone to court.

For un-represented parties, who have no support, mediation is tough, no matter how desperate they are to have the case settled and over.  You can see they want settlement, yet when the emotions run high they can find themselves on autopilot, frightened, and out to sea, not waving but drowning.

“We need you to perform a miracle” said the lawyers.  It was one of those extended family cases where the kids had been raised by grand parents, and then by a paternal aunt and uncle.  These family members had all intervened to let the seriously derailed parents get their acts back together.  Now the divorced parents’ acts were back together, at least enough for mom to want the kids returned to her.  Dad wasn’t so sure.  He thought kids might be better off with his sister in Lamar.  The case was in Denver, and it was all getting a bit Jerry Springer.

Expectations for the mediator were not high, especially because the kids were living way out on the plains, hours away from mom and dad:  Any change in parenting would involve a relocation.  This looked to be headed to trial, and there seemed little to lose if the mediation failed.

So I asked the lawyers to humor me by sitting at the back and not saying anything for a while.  The whole extended family piled into a joint session.  There were far more than two sides to this dispute (mom, dad, grandma, aunt to mention a few).  “So, what do you all want to talk about” I asked the assembled multitude.

The family started talking without ground rules.  They talked with not so much as a hint of where to go from me.  “We have to get the kids enrolled in a school somewhere,” said the grandmother.  Some of the participants wanted an end to it all.  Others needed to re-live the entire who did what to who history.  I reframed and summarized for them, and I checked in with the quieter ones that they were getting to say all they wanted.  They were being helped to have a conversation that had so far eluded them.

There was a ton of emotion in play, from tearful parents pained to not experience the raising of their own children, to women in the extended family who divulged that they could not have children of their own.

The conversation went on at length.  After an hour and a half, tensions quieted, and the family came round to the idea that they wanted to make some progress.  It was more than the lawyers could stand.  One of them asked a question.  It was a helpful question, but tensions rose again.

The kind of progress the family was interested became clear.  Nobody wanted to decide the children’s residence by a coin toss: that decision was headed to a judge, perhaps many months in the future.  A parental responsibilities evaluator was engaged to put some neutral expertise into the mix, and an interim parenting plan was agreed upon to put an end to the chaos that had reigned before.  Hours later ink was on paper.  It was not a complete deal, but it was a fairly comprehensive road map towards a complete resolution.

I was trained to mediate in the win-win problem solving approach, and this was an interesting taste of something different.  Sure enough, none of the professionals could stand it for too long, and we did diverge into separate rooms to hammer out the deal.  But, we did not begin like that, and I do not think a deal was even a possibility before the family was helped to want one.

There are different routes to get from A to B, and opening with a free-form dialog is not an easy sell to lawyers who want mediation to almost look like court with opening statements etc.  The satisfaction model of staying out of court has almost trounced the idea of self-determination through mediation.  At lest for the clients, that can be a sad loss.  Here it was their gain, they got what they wanted!

The divorce had been hard on the nanny. Her employers had continuity of care for their adopted child uppermost in their minds.  They thought that retaining the nanny could be good for helping the child through the divorce.  The parents had asked the nanny to stay on and work in both of their new homes.  It was part of the permanent orders.

Alas, the nanny had screamed at dad, told him just how globally awful he was, and she had gone to live in mom’s new home: it was as if the parties had a second child to deal with.  Everyone was livid.  This was barely post-decree, and the parents were back at each other over disrupted work schedules and that fact that dad just did not want his child anywhere near that woman.

Actually there was a seething mass below the surface.  To their enormous credit, the lawyers had worked cooperatively to keep these parties out of court during the divorce.  They had not used a mediator, and they had settled the case by the exchange of proposals through counsel.  The lawyers had not even met each other’s clients before the mediation.

The lid was about to blow off the pressure cooker.  These were very persuasive lawyers, with excellent client control.  They had really worked on their clients’ desires to settle, and suppressed their clients’ angry urges to not give an inch.  Each party felt that they had been drawn into giving way too much to the other side.  Now they were hot steaming mad over the nanny situation.

The nanny was not the issue, but of course nobody quite says that to the mediator.  Just firing the nanny and replacing her was a totally unworkable solution.  Just about every other aspect of the intricately balanced permanent orders seemed up for grabs in the options placed on the table during negotiations.

So it goes, when the professionals focus the parties on settlement.  Everyone is asked to reflect on how nice it will be to be done.  Every ounce of re-framing skill is used to sanitize any zingers before they get from one side to the other.  Even mediators get trapped into this, by suggesting just how reasonable the offers are as they go back and forth between rooms. 

Once in settlement or evaluative mode, we mediators loose our neutrality.  The parties find comfort behind a defensive wall: I will not give an inch!  Heck, I will not give in, not even to that darned mediator.

Thus it was that I found my self in a “this won’t take more than a couple of hours mediation” that was threatening to go to midnight.  Everyone was getting frazzled. Each time an offer was made, some twist was added.  While movement seemed to be in the right direction, it was glacial, grudging, and both sides consistently snatched defeat from the jaws of victory.

I happened to transmit something that really irked one room to the other room.  Meltdown quickly ensued, and it was all the lawyers could do to keep their clients in the building.  But, wouldn’t you know, the whole case settled very soon after that.  Once the angry exchange had take place, settlement began to look not so bad after all.

It is elemental in mediation that everyone needs to be heard.  The release at expressing just how mad you are to the other side is sometimes all that is needed to get settlement done.  The moral of the story is that feelings buried alive never die.  Sometimes letting them out can be a way to kill them, and also settle.