Mediation is a collaborative process that empowers the parties to communicate with each other with the help of a neutral mediator. One of the benefits of mediation is that it preserves the dignity of the family in divorce cases, and it preserves relationships in other types of cases. In addition to divorce and post-divorce cases, I have mediated cases between boyfriend and girlfriend, college classmates, co-workers, mother and daughter, siblings, neighbors, business partners, and homeowner and contractor.
In litigation, each party hires a lawyer and the lawyers, not the parties, speak to each other about the case. Lawyers are trained to be advocates for their clients, and litigation is known to be an adversarial process. When litigation is over, there is a winner and a loser, and the process of litigation does not encourage the parties to have a positive and warm relationship with each other.
In mediation, I facilitate communication and teach the parties ways to talk to each other and to listen to each other face to face across a table. First, I explain to them that listening to each other does not mean that they are agreeing, and that just because there are two different perspectives does not mean that one person is lying or wrong. One person talks at a time. The person who is not talking is listening. I summarize and paraphrase what one person has said to make sure that the person has been heard. People want to know that what they say matters. I say, "Did I get that right?" and ask if there is anything else to add. Emotions are always validated. If the listening person wants to say something, the listening person does not interrupt; instead he or she jots down a note. When the talking person is finished, and I have paraphrased the content of what was said, it is the listening person's turn to speak and the talking person's turn to listen.
When it comes time to brainstorm solutions to identified issues, I often teach the parties Bill Eddy's "So What's Your Proposal" technique. This negotiating technique keeps the parties calm and focused on moving forward instead of staying stuck in the chaos of the past. The first person can suggest a proposed solution; the other person can ask questions about how the proposal would work and ultimately say "yes", "no", or "I'll think about it". If the other person says no, then that person makes a new proposal. The conversation moves to making proposals and agreements instead of rehashing the dispute.
I often will use gigantic wall post-it notes during a mediation session to write down issues and solutions the parties have identified, and I fold them up after each mediation session, put them in the client file, and then put them back up on the walls for the next mediation session. My clients have told me that visually seeing what they have talked about with checkmarks as they resolve issues has helped them to understand what they have accomplished and how productive each session has been.
Last, I often hear clients say during mediation that they are frustrated because they have sent numerous emails and texts and have received no response from the other party. I teach the parties to communicate via email and text by using Bill Eddy's BIFF method. Bill advocates communication using language that is Brief (instead of using long explanations), Informative (straightforward information and not opinions, arguments, and emotions), Friendly (open or close with a friendly greeting or comment), and Firm (have your response end the conversation or give a couple of choices and ask for a reply by a certain date).
The work of communicating and collaborating is powerful and restorative. Parties benefit from learning new communication skills during mediation and tell me that they use these skills post mediation when they continue to interact with each other. Often, parties are able to resume a relationship after a mediation in a way that is not possible following a highly charged adversarial process.
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.