The spring semester at George Mason University's Scalia Law School began last week, and I am excited to teach my highly engaged students. It's hard to believe that this semester marks the 6th semester I have been teaching at the law school. (I still have exam anxiety dreams from my time at Georgetown University Law Center.) I have devoted the first three classes of my experiential Mediation course to the study and role play of negotiation. Students will soon observe live mediations at Multi-Door Dispute Resolution in D.C. Superior Court, Small Claims Division. Communication and negotiation play a big part in dispute resolution.
Competitive negotiators tend to do whatever it takes to reach their desired agreement – even at the expense of another person or entity. They are results-oriented and focused on achieving short-term goals quickly. Competitive negotiation assumes win/lose.
Adversarial negotiation tactics work through manipulation. These negotiators use a range of pressure tactics to defeat the other side and get what they want.
Cooperative, collaborative or interest-based negotiation involves parties in an effort to jointly meet each others' needs and satisfy interests. The negotiators focus on attacking the problem posed by the negotiations, not each other, and on brainstorming and evaluating solutions together.
Roger Fisher and Bill Ury wrote the best selling Getting To Yes In 1981 which emphasizes these four principles as the core of interest-based or cooperative negotiation:
• Separate the people from the problem
• Focus on interests, not positions
• Invent options for mutual gain
• Insist on objective criteria
Watch this four minute video that demonstrates how principled negotiation (as opposed to competitive or adversarial negotiation) works:
Recently, I was asked by the Executive Development Program department at the Schar School of Policy and Government at George Mason University (GMU) to speak at GMU's Antonin Scalia Law School to two visiting delegations from China organized by the Hubei Provincial Supreme People's Court. Participants were Presidents, Vice Presidents, and Deputy Directors of different courts in the Hubei Province of China. The delegations were in the U.S. to study Alternative Dispute Resolution (ADR) and were interested in hearing about an overview of ADR, what the range of dispute resolution options include, and any other topics related to ADR.
No one in the groups spoke English so we had the help of an intrepreter. My speeches focused on Negotiation and Mediation and included discussions about the ADR spectrum in the U.S, competitive versus interest-based negotiation, and the mediation process. Lots of questions were asked about court-referred mediations versus private cases I handle through Little Falls Mediation and about how to run a mediation practice! It was a lot of fun meeting and talking with these visiting lawyers and judges.
Guest blogger and college student Katherine Barnes recounts her story of acting as her own mediator in a landlord/tenant dispute.
Merriam-Webster defines mediation as “intervention between conflicting parties to promote reconciliation, settlement, or compromise”. Earlier this year, I had to serve as my own mediator while resolving various issues with my landlord in Oxford, Mississippi. Before I moved into my apartment, I was told by the apartment staff that I would be the only one leasing my particular unit. However, when I arrived at the apartment complex companionless, I was told that I was moving into a unit that was already occupied by one other tenant. I was unhappy with this information, as I was initially told that I would have the unit all to myself. Nevertheless, I hid my dissatisfaction and brought all of my possessions up to the apartment.
As soon as I hauled all of my belongings up three flights of stairs and opened the door, I was absolutely horrified. Half-eaten food littered all over the counters, bags of trash spilled out onto the floor, and clothes and junk were spewed everywhere. I immediately realized that I had to confront the staff at my apartment complex, as I could not bear to live in such a mess. I was disappointed and frustrated that I was completely led astray when signing my lease, a legally-binding contract. I felt a lack of respect from staff, because of my young age, and also feared that the staff members were taking advantage of me being young, alone, and defenseless.
Although I typically avoid confrontation, I calmly initiated a productive conversation with a couple of the managers at my complex and explained how the apartment was unfit for me to move into. The staff members encouraged me to move into the unit anyways, offering me gift cards and a cleaning service to eradicate the mess. While I appreciated the offer and their understanding, I was still extremely displeased with the situation. I voiced the importance of giving tenants accurate and timely information, said that I was completely misled with all of the information that I received prior to moving in, and mentioned that I was not comfortable moving into that particular unit.
Thankfully, one of the managers listened to all of my concerns and agreed to move me into a different unit. The unit was immaculately clean. However, I had to compromise about living alone, and I ended up sharing my living space with one other tenant. Overall, I was pleased with the situation and I actually enjoyed my roommate’s company. The managers at my complex promised that our unit would be privatized, and that no other tenants would be able to sign a lease for our unit. This verbal agreement provided me with a peace of mind for the time being.
Unfortunately for me, three months later I was told that another tenant would be moving into my apartment because “no other units were currently available”. Because of the first landlord-tenant issue that I experienced, I became slightly more comfortable with confrontation. It still wasn’t easy for me to be firm with people who had authority over me, but I had no other choice. I again expressed my discomfort with the staff at my complex and reminded them about our agreement to privatize the apartment.
Although I was frustrated to say the least, I remained calm to ensure that the conversation was productive. I voiced my empathy and respect towards the other tenant, while still standing up for myself and for what I had been promised three months prior. The apartment complex staff members apologized and respected my wishes. The other tenant was moved into a different unit, one that was not privatized. If I had not stood up for myself, I would have lived with two roommates after signing a lease with the intention of living alone. While it was not an easy situation to maneuver, I am happy with what I have learned from the experience. I now know the importance of compromise, communication skills, and standing up for myself.
I know a teenager who lives here in Arlington, Virginia and his father has lived on the West Coast since he was three. His father works hard at his law practice and typically does not see his son on Father’s Day.
With Father’s Day looming this year, this teenager decided not to dwell on his absent father. He was spending time with his friends the day before Father’s Day, and they were all talking about summertime, fast approaching now that school activities were winding down, projects were completed, exams were taken, and sports and theater seasons had just ended. Usually, during the school year all of these teenagers are over-committed with extra-curricular activities, community events, volunteer projects, sports, and jobs.
This teenager found out that, to his surprise, several of his friends had dads who were going to be out of town for Father’s Day. So he organized a day of fun with them. They hung out, threw around a frisbee, went biking, went to Trader Joe’s to get snacks, and celebrated the sunshine and lack of rain on the roof of a friend’s apartment building.
Then this teenager brought three of his friends to a cookout at his house along with his mother, his sisters, his sisters' boyfriends, his stepbrother, his stepsister, and his stepfather. There was a lot of food – burgers, sausage, chicken, peaches – all grilled by his stepfather. There were chips and guacamole, lots of fresh fruit and vegetables from the farmer’s market, hummus, salad, and brownies for dessert.
The teenager went down to the basement after dinner with his friends and later in the evening, the moms started arriving to pick up the friends. But to the delight of all of the teenagers, the moms stayed for conversation and to have a couple glasses of wine. By the time everyone headed home, it was 11:00 p.m., and the day had been an unexpectedly perfect one.
In March, I wrote a blog post about grief and resilience, not knowing that my son John, a sophomore in high school, was writing an article about resilience in his English class at the same time as well. I didn't know that he had submitted his piece to a magazine for publication, encouraged by his wonderful teacher, Adrienne Wichard-Edds, until he received a notification that his article would be published in the May/June, 2019 Your Teen magazine. The magazine even paid him $35 for his piece! Here is John's article, which was part of the magazine's cover story on Resilience:
Stress and Resilience: For Me, It's About Overcoming Stress, Not Avoiding It
The chair I just threw at the wall makes a noise louder than a balloon popping next to your ear. I might’ve just broken school property, but damn, it felt really good.
It had only been two hours since all of my work was deleted. I had been editing my current film project, and the computer was out of storage when I needed to import new footage. My teacher mistakenly deleted my whole project while trying to free up space, thinking that he deleted something else. It was partially my fault for inadvertently saving my project to a folder for the middle school play our school put on two years ago.
I had no backup. I stayed after school with my teacher trying to somehow recover the files. Five trillion thoughts rushed through my brain. I’m going to have to re-edit that scene I worked on for three hours. The one that took so much tinkering to get right. How am I going to finish this on time now?
Should I just give up? Everyone thinks I’m an idiot.
Suddenly it was 8 o’clock. The teacher had left two hours ago, and I’d been trying to recover the files. Nothing came up. Every time I thought about all the editing I’d have to redo, I threw a chair at the wall. At the ground. I banged my fists on the table. It didn’t feel like I was in control of my own body. Then I got a text from my friend Ellie, who was there when all of my work was lost.
Did you find the files?
At least you didn’t lose your footage. I think you just have to accept the fact that you’re going to have to re-edit this thing.
She was right, of course. I needed to look on the bright side. Editing is one thing, but imagine if I had to reshoot the hours of footage I had! That makes the whole re-editing thing seem like a vacation in comparison.
It may have taken me a few hours to get to the realization, but I finally understood that it was time to adjust to my new reality. When I got home, I made a schedule of what I was going to edit each day. It was time to take this seriously.
I learned that maybe I actually can handle what life throws at me. I can be strong and put together. First I have to get out of my own way.
John Barnes is currently a sophomore at H-B Woodlawn in Arlington, VA. You can watch his newest (no longer deleted) film Reject and other projects at vimeo.com/johnbarnesfilms.
My clients always ask me, "Do we need to hire an attorney if we are working with Little Falls Mediation?" Although I am an attorney, my job when working with my clients in mediation is to be neutral at all times -- not to be an advocate for each party. I always advise my clients that it is a good idea for each of them to retain counsel so that they can ask for legal advice throughout the mediation process, as well as have an attorney review the draft Marital Settlement Agreement or Memorandum of Understanding that I have written for them. Karen Keyes is this month's guest blogger. Karen is a friend and colleague and founder of Arlington Collaborative Law. I ask her to speak to the law school class I teach each fall at GMU, Alternative Dispute Resolution, on the topic of collaborative law. I've asked her to be guest blogger this month to explain how she often works as a reviewing attorney after a mediation agreement has been drafted.
As a Family Law Attorney, I am often contacted by a potential client with the request that I review an agreement reached in Mediation. It is important that the client (and the person referring the client) understand what to expect from the Attorney under such circumstances. The parties have come a long way and have done a large chunk of the work to frame an agreement; the Attorneys then can help the clients cross the finish line!
A Mediator following sound protocol would inform the parties at the beginning of their Mediation that the Mediator does not provide legal advice and the parties should each have any agreement reviewed by their individual attorneys prior to signing a settlement. The Mediator should also inform the parties what the Mediator’s drafting policy is. The Mediator cannot provide legal advice or represent either party. The Attorneys, not the Mediator, should be responsible for the final contract. Both parties cannot be represented by the same attorney.
Furthermore, it is sound practice for the Mediator to work with the clients to summarize their financial disclosure to one another (assets, debts and income) so the consulting attorney has access to both parties’ information.
Ideally, the client has met with, and hired the Attorney, to consult with the client throughout the Mediation Process, so that by the time an agreement is reached, there are no surprises to either the client or the Attorney. The clients save funds by working together directly with the Mediator and the Attorney’s fees are lower when the Attorneys are not directly negotiating with each other on behalf of their clients.
The Mediator may prepare a Summary or Memorandum of Understanding reflecting what is agreed to (such document is not intended to be signed by the parties). If a document is signed by the parties, it may be legally binding and very difficult, if not impossible, to change unless the parties both agree.
Once the parties have a verbal agreement on the issues, and a Memorandum from the Mediator, then a determination is made regarding who will draft the settlement contract (which includes the necessary legal language and would be signed by the parties when in final form). Some Mediators will offer to draft the settlement contract; some may not. The client should inquire with the Attorney whether the Attorney has a preference regarding who drafts the contract (Mediator v. Attorney).
In any event, at the very least, each party should consult with a separate Attorney regarding the content of the settlement contract before signing the document. The role of an Attorney advising the client is to obtain the facts for a good intake (including but not limited to the disclosure summary prepared in Mediation), to inform the client regarding the applicable laws on any topic that is relevant and how those laws apply to the facts and the tentative agreement, to discuss whether there is any additional disclosure that should be obtained prior to entering into a signed settlement contract, and to be sure the client understands what is being agreed to and the impact that it could have over time.
The Attorney advises the client whether certain topics should be added to the agreement. Further, the Attorney would need to review any contract, if one has already been prepared, and to advise the client regarding any changes to the content and verbiage.
Sometimes, when a Mediator informs the parties they should each consult with an individual Attorney before signing a settlement contract, the client may not have the full understanding of the role of the Attorney. I have had clients request one hour of my time to do the job. Every case is different. Yet, unless a case is very simple and the assets or debts are minor and there are no child or spousal support issues, it is very difficult to get much accomplished in one hour. It is reasonable to expect that it may take a few hours for the consult, intake and discussion, and then more time to review the Agreement and make suggestions regarding content and verbiage.
Once a settlement contract is finalized and signed, it then becomes a binding legal contract and is likely to be incorporated into a court order (i.e. divorce, custody, support etc.) The reason to consult with an Attorney is (1) so the client understands what is being agreed to; (2) so that the document is solid, will be acceptable to the court, and durable over time; and (3) to avoid any contest over the agreement in the future. The legal consultation is not just a matter of checking in, but to assess the legal work needed that exceeds the responsibility of the Mediator.
A good Attorney who is asked for review should understand the concept of client self-determination and still be able to advise the client and provide any protections that are beyond the scope of work that the Mediator can provide.
If the client brings a signed settlement to the Attorney to use in obtaining a Divorce, the Attorney is then taking action to incorporate a settlement contract that the attorney had no responsibility for prior to its execution. Depending on the content, the Attorney may or may not be willing to do so.
In closing, it is best not to be “penny wise and pound foolish.” Allow time to get legal advice along the way and to have an attorney be involved in the drafting of the settlement contract before signing the document. The settlement contract is more likely to meet the needs of the client and avoid unnecessary costs that could arise later due to lack of clarity, interpretation and/or enforcement at a later date. Once the agreement is complete, the client should be able to have confidence in the document that is signed.
“Note to self: every time you were convinced you couldn’t go on, you did.” -- Unknown
Death, divorce, illness, and unemployment are four big sources of stress in our lives. When I first meet my clients, they don't have to tell me they are going through a really tough time in their lives. I see grief and loss written all over their faces. I often think of Sheryl Sandberg, whose husband Dave died while they were both on vacation in Mexico celebrating a friend's 50th birthday. Sheryl took a nap and Dave went to the hotel gym where he died suddenly after falling off of a treadmill and suffered head trauma and blood loss. An autopsy revealed that he had suffered from coronary artery disease. Sheryl wrote and spoke openly about being "swallowed up in the deep fog of grief".
Many, if not all of my clients, are openly grieving as well. I watched Sheryl's commencement speech at University of California, Berkeley a year after her husband's death -- or as she says, one year and thirteen days after she lost her husband. She said that for many months afterward there was a void and described "an emptiness that fills your heart, your lungs, constricts your ability to think or even to breathe."
Sheryl talks about how she hit the books to try to understand and process grief and resilience. She looked at the data and quotes psychologist Martin Seligman in saying that there are three Ps -- personalization, pervasiveness, and permanence -- that are common emotional reactions to so many things that happen to us and are critical regarding how we all recover from hardship.
• Personalization is the belief that we are at fault. Sheryl says that not taking failures personally allows us to recover — and even to thrive.
• Pervasiveness is the belief that an event will affect all areas of your life. Sheryl says that she realized that other things in her life were not awful. After all, she and her children were healthy and had loving friends and family.
• Permanence is the belief that the sorrow will last forever. Sheryl says that we often project our feelings out indefinitely. Instead, we should accept our feelings and recognize that they will not last forever.
How do we define resilience? Harvard Business Review says that resilience is the ability to recover from setbacks, adapt well to change, and keep going in the face of adversity. (Harvard Business Review, January 5, 2015)
Organizational psychologist Adam Grant says that terrible things will happen and that resilience is crucial; the key is how you recover. “I think about resilience as the speed and strength of your response to adversity. So when you encounter a difficulty, a hardship, a challenge, how quickly and how effectively are you able to marshal strength and either overcome that challenge or persevere in the face of it?” (CNBC, June 7, 2017)
Sheryl said in May of 2017 at a commencement speech at Virginia Tech that we are not born with a certain amount of resilience. Sheryl says that resilience is a muscle, and that means we can build it. "We build resilience into ourselves. We build resilience into the people we love. And we build it together, as a community... It is in our relationships with each other that we find our will to live, our capacity to love, and our ability to bring change into this world."
Sheryl talks about building resilience through shared experiences and narratives, relying on others, acknowledging our friends' challenges, being present for those in need, growing and nurturing hope, lifting each other up, celebrating joy, and cultivating gratitude and appreciation. "Counting your blessings increases them. People who take the time to focus on the things they are grateful for are happier and healthier."
So write down three things that went well today -- instead of three things you did wrong. Call a friend whose mother just died instead of avoiding him because you don't want to bother him. Think about what you appreciate in your life instead of all of the things that are not going well. And reach out to your friends and family to help summon strength instead of isolating yourself.
"If your heart is broken, make art with the pieces." -- Shane Koyczan
Just about every new client asks me this question. Usually, a potential new client will reach out to me by email or by phone call. I set up separate confidential phone calls with the potential client and his or her spouse or partner, since most of my cases are family mediations involving separation and divorce. These phone calls are called intake calls where each party can ask me questions about how the mediation process works and share information with me about the case. After the intake calls, I send each party an intake form to fill out and to send back to me. The intake form provides me with information about each party and also facilitates each party to start thinking about mediation goals and interests. A date is set for a first mediation session. At some point during this intake process, a client will ask me, "So...how should we prepare for our first mediation session?"
Here are my tips for how to best prepare for mediation:
1. Be prepared to be present and to listen. During mediation you will take turns listening and speaking. Bring paper and pen to take notes during mediation when the other person is talking. People often like to talk; it's much harder to listen. Keep in mind that listening does not mean agreeing. Tears and laughter often occur during each session -- bring tissues. Schedule the mediation for a time when you are high energy and well rested, such as mid to late morning.
2. Think about the issues you would like to discuss and prioritize them. One client said to me during intake, "We've never mediated before and we've never gotten divorced before. We don't know what we don't know. Can you help us figure out what issues we need to talk about?" In general, divorcing couples need to think about discussing a parenting plan if they have children that will include resolution of issues such as custody, parenting schedules, holidays, vacations, and child support. If there are no minor children, a mediation may begin with discussion of how to divide assets and liabilities, how to calculate spousal support if applicable, and what to do about real estate, taxes, retirement, insurance and other issues.
3. Gather necessary documents and information. Organize your financial documents and record your monthly expenses. Set up an organizational system if you don't already have one in place so that you have easy access to all of your utility bills, mortgage statements, car loan documents, credit card and bank statements, retirement account information, tax returns, homeowner/car/liability insurance statements, appraisals of valuable items, and all other important financial documents and records. Estimate the net worth that you and your spouse have accrued. Often one spouse was involved in handling the finances in the marriage (paying bills, budgeting, investing) and establishing relationships with the family accountant, attorney, and financial advisor. It's necessary for both spouses to be completely transparent with each other regarding all of these matters.
4. Identify key interests. Work out what interests are important to both of you and then work out a strategy for trying to reach a settlement that addresses these interests. Use Bill Ury's interest-based negotiation strategy: (a) separate the people from the problem, (b) focus on interests not positions, (c) get creative and brainstorm a variety of options where both sides can win before settling on an agreement, and (d) use objective criteria to evaluate options. Interest-based negotiation requires communication, collaboration, cooperation, and compromise; positional negotiation involves holding onto a fixed idea or position and not wavering. In divorce mediation, the core issue when there are minor children is what is in the best interests of the children. For example, a parent may want to spend every day of each school break with his or her children after divorce and realize at the same time that it is in the best interests of the children for both parents to share equal time with the children on vacation days. Some parents choose to split school vacations, some parents alternate vacations, and some families vacation together post-divorce.
5. Reality check your case. Each party should retain an attorney with whom to consult at any point during mediation and who can review the written agreement the mediator will draft after all decisions have been made in mediation. (Although I am an attorney, as your mediator, I must maintain neutrality and cannot also function as the reviewing attorney.) Ask the lawyer how he or she thinks a judge may rule on an issue that may be particularly difficult to settle in mediation, if the case were to go to court. Consider the lawyer's wisdom and advice as negotiations proceed in mediation.
6. Assemble a team of advisers if necessary. A divorcing couple may wish to find a certified divorce financial analyst who will work with both parties as a financial neutral. The parties may also want to jointly consult with an accountant, tax adviser, business valuator if either party owns a business, real estate appraiser, therapist, parenting coordinator if there are children, and a retirement expert if necessary. We may bring one of these consultants into mediation for a short period of time by phone call or in person. Each family is unique and sometimes there is no need for a consultant at all.
Happy 2019! I'm back to teaching Mediation at George Mason University Antonin Scalia Law School for the Spring semester after teaching Alternative Dispute Resolution in the Fall. In class on Wednesday I'll be talking about interest-based negotiation and William Ury, one of the world's leading experts on negotiation and mediation.
Ury is co-founder of the Harvard Program on Negotiation and author, along with Roger Fisher, of Getting to Yes, as well as numerous other publications. Ury talks about how to build a golden bridge in the video clip below.
Ury says that the phrase “golden bridge” comes from a Chinese military strategist Sun Tzu, who twenty-five hundred years ago wrote a book called The Art of War and talked about building your opponent a golden bridge to retreat across. Ury says that "In negotiation I would reframe that positively as a golden bridge for both of you to advance across." In the clip, Ury talks about how Steven Spielberg built a golden bridge during his high school years with a bully who was tormenting him.
Ury says that "you may be tempted to push—to cajole, to insist, and to apply pressure. But pushing may actually make it more difficult for the other side to agree. It underscores the fact that the proposal is your idea, not theirs. It fails to address their unmet interests. It makes it harder for them to go along without appearing to be giving in to your pressure. And it makes the prospect of agreement seem, if anything, more overwhelming."
"Instead of pushing the other side toward an agreement, you need to do the opposite. You need to draw them in the direction you want them to move. Your job is to build a golden bridge across the chasm. You need to reframe a retreat from their position as an advance toward a better solution."
December is a busy month for everyone -- there are so many presents to buy and wrap, holiday parties to host and attend, and deadlines to meet at work before taking off a few days. For me, December of 2018 is also busy because I am meeting with many clients who are trying to get divorced before the end of the year, in part because of the changes in the tax law and in part to make a fresh start for 2019.
I work with successful, smart, talented, hard working, good looking parents who share stories about their children and their families with me. The families with whom I work have chosen to work through issues such as co-parenting and splitting assets and liabilities through mediation rather than litigation. Getting divorced is one of the hardest challenges a family can face, right up there with unemployment, illness, and/or losing a loved one. Many of my clients are struggling right now to just get through the day, so trying to figure out how to get through the holidays this year can be overwhelming to them.
Ingrid Fetell Lee of The Aesthetics of Joy says that "often, when a crisis hits, we are tempted to forgo joy and focus our attention only on dealing with the problem at hand. We rely on grit and tenacity to help us push through the difficulty and get to the other side." She suggests that "we’re usually better off if we allow a little joy into our struggle. Positive emotions play an important role in resilience. They provide relief from stress, allowing our bodies and minds a moment to recover. They also broaden our mindset, breaking us out of gloom-and-doom cycles of rumination and helping us gain new perspective on our problems. Research by psychologist Barbara Fredrickson (among others) suggests that feeling joy during a stressful time actually “undoes” the negative cardiovascular effects of stress on the body, and that people who experience positive emotions amid adversity cope better and are more resilient in the face of future problems."
So here are just 5 tips for trying to stay joyful during tough times:
1. Say thank you and express gratitude. Be grateful for all that you do have and may take for granted -- good health, good friends, good food to eat -- and don't dwell on what you don't have.
2. Find purpose and have passions. Stephanie Sarkis, Ph.D., says in Psychology Today (December 31, 2017) that "the truth is, what gives our lives purpose and meaning changes over time. It particularly changes after a big life event or crisis. Some self-reflection is a good way to start discovering what truly matters to you."
3. Surround yourself with positive people who inspire you. Make meaningful connections. Lean on friends and family.
4. Do something for someone else. Volunteering to help people or animals will give you joy. For example, Temple Rodef Shalom in Falls Church, Virginia has a Mitzvah (Good Deed) Day every Christmas with projects for all ages with the goal of making the holiday brighter for those neighbors in need in the community. This year volunteers will cook and deliver meals to shelters and group homes, help clothe children and families, and help animals in area shelters.
5. Sing and dance. Ingrid Fetell Lee says that "singing and dancing offer powerful ways to shake off stress and feel our way back toward joy. Studies have found that when people sing together, their heart rates, brain waves, and emotional states become synchronized. Similar changes happen when people move in concert. Singing and dancing together can even promote cooperation and generosity, which may be why shared vocalizations and movements are an integral part of religious or spiritual traditions around the world."
Let me know what you do to stay joyful in tough times to add to the list!
Wishing you all a happy, healthy, peaceful, and joyful Christmas and New Year!
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.