Sometimes, parties will seek mediation in search of internal clarity. The stated reason for scheduling a session may be very different from the desired result. In these cases, the mediator’s role should be one of gentle probing and guidance to help the parties reach a transformational moment of aligned purpose.

I recently met with a couple ostensibly seeking a divorce. They were ready to proceed, very organized, and, it seemed, motivated to move through the process as quickly as possible. However, when we met, it became clear quite quickly that neither of them wanted to end their marriage. One party simply wanted the other to commit to marriage counseling so that they could resolve some longstanding issues in their relationship.

The climate in our session had taken an interesting turn. As a mediator, my role had shifted. Rather then helping this couple move their divorce forward, my responsibility lay with ascertaining whether both parties wanted to stay in the relationship, and if they did, would they both agree to attend counseling?  As we proceeded, both parties expressed a desire to stay in the relationship and a willingness to attend counseling.

When working with widely different personalities and perspectives, in an environment where the emotional climate can change as quickly as the natural one, a mediator has to be nimble.  We have to sense emotional storm clouds gathering in the distance, keep the conversation moving forward, and dispel unproductive conflict with a carefully (and quickly) chosen word or joke.  

With these clients, it became clear that their stated intention for mediation (divorce) was not their actual goal. My clear path forward was to support them in their chosen path. They needed me to facilitate an honest conversation that made it clear they still loved each other and wanted to try again to make their relationship work.  In this instance, mediation served as a mirror for the parties to better understand their own goals. 

In our highly individualist society, we are taught from a young age to stand up for ourselves, to fight for what is ours, and to stand our ground. Early lessons about sharing quickly go out the window as we learn to accumulate and compete. As a result, many of us feel weak when we compromise or allow another person to "win." However, in a mediation, those who find that they can share often emerge as the most satisfied participants.

I recently mediated a case where one person held their ground, refusing to see any merit in the other person's position. While their stubborn attitude may ultimately "win," what have they actually accomplished? It's true that they have successfully alienated the person across the table, whom I feel fairly certain will feel disinclined to treat them generously in the future. In this case, that is quite tragic, as their situation requires them to have an ongoing relationship. So, while the "win" may result in short term gain, the cost to the overall relationship is unlikely to be worth this expensive stance.

How could this have gone differently? How would flexibility have allowed the parties to maintain an ongoing, trusting relationship? Perhaps both parties would have felt validated by each other, enabling us to discuss collaborative solutions that worked for both of them.

Is it possible to validate another person's position and still maintain your own? The answer is yes, of course. When one party acts generously, the other party will more often than not respond in kind. And, just in case they don't, the mediator is there to call attention to the generous act so that it does not go unnoticed. However, when one party is determined to hold their ground at all costs, generosity has no place in a mediation. Why should the other party placate, when their counterpart is unwilling to budge, nor even acknowledge the validity of their position? This is not the dynamic of a conversation, but of a cave-in.

Mediation assumes that the parties are willing to have a conversation on these terms of flexibility, collaboration, and respect. If those three tenets are absent, the conversation doesn't really have anywhere to go, except downhill.

I recently met with a couple. They came to see me at one partner's request - Partner A desperately wanted to get out of their marriage, while Partner B was in total denial that A really wanted to leave them. Over the course of our meeting, I witnessed A's extreme distress, and B's repeated attempts to emotionally manipulate A into staying with B, despite A's stated misery.

We met for two hours, at the end of which I thought B was starting to understand A's perspective. We set a meeting time for two weeks later. The next week, I received a short email from A telling me that they were getting back together. My initial reaction was shock. It was all I could do to keep myself from calling A to ask what had changed their mind so completely, but I forced myself to sit still and respect A's stated wishes. I wrote back, wishing A the best of luck.

As a mediator, this was an extremely difficult action of restraint, and another excellent reminder that I must table my own judgments in order to better serve my clients. I met with this couple for several hours. They had a much deeper insight into their internal dynamic than I could ever have. What looked like emotional abuse to me may not have been that at all. On the other hand, it may have been exactly that.

However, I need to afford A the respect they deserve as a competent adult to make their own decisions, without my own assessment of the situation clouding any outcome. As a mediator, I'm not pushing any agenda (certainly not my own), and I can't facilitate a conversation that the parties do not want to have. I sincerely wished them the best of luck with their marriage, and I did so with a clear conscience, knowing that I did not allow my judgments to stand in their way.

Many mediators subscribe to a certain mediation style, and it behooves any of us looking for an appropriate mediator to learn a little bit of mediation vocabulary in order to know what we can expect. This new understanding will help to discern which mediator best suits your goals and preferences, and also assist you in assessing whether or not the mediator’s style will help or hinder an appropriate resolution of the problem at hand. And now, without further delay, the two main schools of mediation styles:

1. Directive

The directive style involves, as one might imagine, a more directive approach. Mediators who subscribe this philosophy take a more active role in the mediation. They may take charge altogether, highlighting the issues they perceive to be the most important. They may also suggest solutions, emphasizing their own perspective and experience. Directive mediators (and their experience) can add tremendous value in cases where technical issues are important to the parties, but they operate in a gray area that lies somewhere between mediation, arbitration, and more traditional methods of dispute resolution (e.g. litigation). Others guard the process carefully and navigate their mediations with great dexterity. Many directive mediators are former or current attorneys with decades of experience in the courtroom. They bring with them a wealth of experience and knowledge. However, any prospective client should be aware that the process might be less client-centered. Clients should be prepared for this shift, and speak if they are uncomfortable.

2. Facilitative

The facilitative style centers around the client(s), as opposed to the mediator. A facilitative mediator will let the clients drive the process, though the mediator is there to provide structure. Clients have both responsibility and power in a facilitative mediation; they need to ask questions, actively participate, and be prepared to negotiate with each other. The facilitative mediator will guide clients, but they will not direct them. The clients determine the relevant issues for discussion and collaborate to construct an agreement that meets their needs and goals. The clients must engage with each other and the mediator. A facilitative mediator should have the tools and knowledge to answer substantive questions their clients may have, but they will not volunteer this information is order to sway the clients in any given direction, nor will they offer their opinion as the guiding principle for decision-making.

3. Hybrid

Most mediators use some combination of the facilitative and directive styles, but it is vital for potential mediation clients to understand the mediation philosophy of their mediator.

Mediation is an alternative dispute resolution process precisely because it allows parties to creatively construct their own solution, within the scope of the law. Choose your mediator carefully, and take the mediation seriously. That way, everyone wins.

I recently had the pleasure of attending a workshop about some of the psychological elements in mediation, by Dr. Ilene Diamond, and sponsored by Community Boards.

This presentation was fascinating for me. One of the main ideas that we discussed was "mentalization," which denotes a person's ability to understand the mental state of another without overt verbal explanation. This includes the ability to feel empathy towards someone else, and the ability to understand a situation from another's perspective.

When a person has poor mentalization skills, it is very difficult for them to participate collaboratively in a mediation. They are unable to compromise, since they are unable to see the relevant issues from anyone's point of view but their own. Moreover, they have a sense that they will be "losing" if they make any concessions.

But the most interesting part of mentalization revolved around the formation of this skill set, which starts extremely early in life. In infancy, we learn from our parents that it's possible to intuit how someone else is feeling - they anticipate our needs, look after us, and connect with us before we can verbalize our needs. From them, we learn that we can relate to other people in this way. Sadly, babies whose parents are less attentive, or perhaps negligent, never learn these skills. While they can be taught later in life, the foundation is laid in infancy. Amazing.

So how to work with a party who has poor mentalization skills? Often, the best approach is to cast the relevant issue in selfish terms, i.e., "If you let this person have this one thing, it really is better for you because...." If the poor mentalizer can see self-interest in a decision, it will be more compelling for them.

Today I faced a novel situation in a divorce mediation. After getting to know my clients fairly well over the last few months, we are now beginning to enter the last phase of the process, and their divorce will soon be final.

While I felt a sense of accomplishment that we were drawing their case to a close, and that the marital settlement agreement was equitable, and well-written, it dawned on me that today might not feel quite the same for the other people in the room. While one party was visibly smiling, and quite calm, the other had started to cry quietly. In all my efforts to be fair, listen to my clients, and honor their wishes, I had forgotten that this conclusion marks the end of their marriage in a concrete way, and was likely to cause pain. Disappointed in my own lack of empathy, I offered what comfort I could, but it was a sobering moment, all the same.

I learned a valuable lesson today, and I will try to remember it for the future: it's really not about the mediator - it's about the clients. I did my job, but that was no more than was expected. I also needed to be looking out for the emotional needs of my clients. As the mediator, I really shouldn't dwell on my own work, or seek approval; rather, my objective should be to offer comfort where I can, while providing highly competent services, and giving my clients the respect and attention they deserve.

So often, it's tempting to want to jump in as a mediator, with a potential solution for clients. But, as a facilitative practitioner, it's sort of besides the point. Facilitative mediation allows the parties to drive the process, not the mediator. One of the reasons I feel so passionately about mediation is that, unlike a traditional legal setting (i.e. court), the clients are allowed and encouraged to build their own solution. The outcome is entirely in their hands, though the mediator can certainly offer guidance. It's a beautiful thing, really.

Several times over the past few weeks, I've encountered people who are ostensibly engaged in a course of action that would seem to require a generally peaceful/positive attitude (i.e. yoga). However, while they are going through the motions they are so intent on doing everything perfectly that they lose the point of the exercise, snapping at other students, and otherwise spreading energy antithetical to that which they are supposedly seeking.

There was one interaction which the teacher quietly noticed. In response, she said to the entire class, "If you do every pose perfectly, but are mean-spirited, you are missing the point. It's so much better to smile through the difficulty, faltering, and yet always striving to do better."

I couldn't agree more. If we lose the essence of why we do what we do, then we probably shouldn't be doing it anymore.

I think this lesson translates well here, when examined through a mediation lens. Part of really listening to clients, really understanding them, comes from a deep-rooted desire to help, to heal, and to make whole. That energy can really only come from a place of sincerity.

Occasionally, I am honored to serve as a volunteer for Community Boards, the nonprofit organization where I did my initial 40 hour mediation training.

There are many things to love about Community Boards, but perhaps the most beloved aspect of their mediation model lies in their volunteers. They train ordinary community members to mediate neighborhood disputes, regardless of the volunteers' professional background. As a result, many San Francisco neighborhoods have benefited from Community Boards mediations, which resolve a wide range of conflicts. Through their volunteer program, I have mediated landlord tenant issues, noise disputes, family concerns, planning commission hearings, and many other types of conflict. The city uses them on a regular basis to resolve conflicts that would otherwise clog our agencies and courts.

However, when I serve as a volunteer mediator, I leave my own private practice out of the mediation room. I feel very strongly that a Community Boards mediation is not the place to engage in marketing for my own business; rather, I am there as a representative of the nonprofit, and nothing more. While I can tell you that not every mediator feels similarly, for myself this is the only ethical option. I was a mediator in a case where one of the other panelists told me he planned to give his business cards to the parties before the mediation, and that I should feel free to do the same. When I told the other panelist I found this inappropriate something unexpected happened. He thanked me for keeping him honest. Neither one of us distributed our cards. The lesson to be learned? I'm not sure that there is one, except maybe to listen to your internal moral compass. Others might appreciate your integrity, but that's really besides the point - the impetus in my decision was the parties, and their comfort level. In the end, we provided a mediation that was focussed on the issues before us, rather than our self-promotion. And that, to me, was really the point.

Sometimes, we attribute motivations and intentions to those around us when they are simply not there. This may be our own projection of insecurity, or simply the accumulation of baggage we all lug around with us in our daily lives. Whatever the case, don't be too sure that you know where someone else is coming from. Until you actually talk about it, you really can't be sure.

However, sometimes, we do know how other people are feeling, or can predict that our actions will trigger a patterned reaction in them. And when we find ourselves in this situation, say, in a mediation, it would behoove us to avoid the hot button issue that you know will trigger an emotional reaction, right? The answer is not as predictable as common sense might dictate. Sometimes, we sacrifice progress and consensus building for the thrill of a cheap dig, and snatch at the self-destructive option. We make the comment, starting a cycle we know all too well. Why do we do this? That's probably a question that is more appropriate for a psychologist to address.

But in mediation, how do we recover from such a moment? How do we take a step back, and salvage the hard-won progress we've collaborated to build thus far? In my experience, it's important to call a cheap shot a cheap shot, but at the same time not to belittle the person who succumbed to the moment. After all, we're all human. We've all stumbled in this way before, and we will again. But it's important to recognize the mediation room as a sacred space that does not abide such behavior. We have to bring our best selves into the mediation room, and be prepared to compromise and work together.

So, OK. The person who has initiated this behavior has been called out. Now what? Both people are feeling exposed, maybe embarrassed. The mediator then has to bring everyone back to the task at hand, to continue the conversation. Maybe we acknowledge that there are many emotions in the room. An apology might be in order. But we return to the basic tenets of respect and civility that must guide the process. No one said mediation was going to be easy. But if you trust in the process, acknowledge each other's humanity, and learn to move on, you've got a fighting chance of crafting an agreement.

I've discussed this briefly before, but power struggles are one of the most interesting and challenging aspects of mediation for a mediator, and especially this one.

When one party is more knowledgeable of the law or the process at hand, they may turn often to the mediator for reinforcement that they are "correct." Over time, this can result in the other, less well-informed party feeling trampled, or often defeated. How to navigate this scenario with care? Even if the knowledgeable party is technically correct, I try to remind both parties that one of the reasons they are in mediation is that the alternative dispute resolution process allows for a more creative (although always legal) solution.

This maneuver usually helps me to sidestep declaring them correct, and reminds them that their interests will be far better served if they engage with the other party, rather than seek to display the twenty minutes of Internet research they have may have done in preparation for the meeting. A gold star from the mediator doesn't go very far when the parties can't have a meaningful exchange between themselves. Alienating the other party is not prudent, and yet this is exactly where this path will lead. Most parties in mediation are there to work with the person on the other side of the table - when the conversation turns to "right" and "wrong," things are almost certainly going downhill. I prefer to couch issues in terms of "fairness" and moving forward towards an equitable resolution together.

The law absolutely has a place in mediation; a sense of the law is vital to enable the mediator to provide context for any agreement that may emerge from the process, as well as to ensure that the parties are fully informed of their rights. In my experience, this legal background is perhaps best received when it comes from the mediator, and preferably is requested jointly by the parties.

The other day, I came across one of the stickier issues in mediation - an imbalance of power between the parties, when neither one would admit that this was the case. It's a difficult problem to navigate as a mediator when one party won't acknowledge that the proposed solution is actually catastrophic for them.

Why would this happen? Why would anyone allow themselves to be pushed into an agreement that didn't actually work for them? The answer, unfortunately, is because they are often too scared or too timid to speak up and serve their own best interests. Why does this happen? Sometimes, it's the result of long-entrenched patterns of behavior, where one person has bullied the other for so long, and for so many years, that it's just the way they operate. Other times, the bullied party does not feel their position is justified, even if it is ultimately "just," or at least, reasonable.

Though I subscribe to a facilitative model of mediation (a party-driven process), I often find it difficult to hold my tongue when I see this sort of pattern emerging in a mediation. But what can I do as a mediator to rectify the process and navigate the discussion to a more productive place, without impinging on the autonomy/self-determination of the parties?

As a mediator, I am neutral. I can't advocate for one party or another, but it is my duty to ensure that no one signs an agreement that will prove to be untenable. So, while I can't push one party's agenda, I can ask tough questions to ensure that each person understands the ramifications of the disputed term, and also understands that it's better to walk away from the mediation than to leave with an agreement that is patently unfair (or even an agreement that they don't reasonably believe they can abide).

My goal is to leave parties with an agreement that will help them navigate their future interactions with dignity and respect, but failing that, I would prefer that they not set up an agreement that will almost certainly lead to failure or unfairness. In this sense, I represent the idea that no agreement is better than an unworkable agreement.

Have you ever felt so misunderstood and frustrated by someone in your life that you simply stopped communicating with them? Have things ever improved from there?

Often the point at which conversation halts is exactly the point at which it should really continue. It can mean it's time to listen more, and speak less, but closing the proverbial door altogether is seldom justified.

I mediated a case recently where the parties on both sides had constructed elaborate narratives to justify why each was a terrible human being. In reality, each side felt grossly misunderstood despite all parties trying to act with good intentions. It just wasn't a good fit.

Together, we quickly discovered that all everyone wanted was to be able to walk away from the situation and make a clean break. Easy enough. Once we determined that, the terms practically wrote themselves, and we had a signed agreement. Instead of expensive, ongoing litigation, everyone was able to walk away with a tidy, fair resolution, and emotional closure to a situation that had dragged on for three years.

As a mediator, it's extremely important to me to build a trusting relationship with my clients. It's imperative that my clients know they can rely on me to honor all of my professional commitments to them. I take this responsibility very seriously. From time to time, I will hear of a mediator who does not take this tenet of the profession quite so much to heart.

Recently, I received an interesting email from a prospective client. They were angry, and had just had an extremely negative experience with another mediator who had missed appointments, deadlines, and otherwise behaved unprofessionally in countless other ways.

While these prospective clients were skeptical that mediation could ultimately serve their needs, they decided to give the process one more chance. I had the mess this other mediator created dumped in my lap, and I decided to accept the challenge. I felt strongly that it was up to me to restore my new clients' faith in mediation and mediators. I resolved to give them the best possible service, and agreed to take their case.

Slowly, after steadily proving to them that they could trust me to honor my promises and commitments to them, we built a professional relationship with a strong foundation of trust. We carefully constructed an agreement that met their needs, and discussed issues of contention until both we satisfied. When their case was successfully resolved a few weeks ago, they both let me know that the experience, while trying, had been productive and as positive as possible.

I felt so honored to be able to shift their perception of mediation from a negative to a positive experience. Earning and retaining a client's trust throughout a mediation is always my goal.

Sometimes, the very people we need to speak with the most are exactly the folks we are least able to tolerate. We're so angry, so frustrated, so emotional, that we can't even begin to THINK of talking with this person who has so offended us. And yet, if we don't speak with them, what hope can there be of any sort of resolution?

Mediation is a collaborative process, which assumes a basic working relationship of the parties. You may not like each other (indeed, you may hate the person sitting across the table). Nevertheless, your best chance of building a lasting solution is also sitting across the table.

Several times during the last few months, I've been contacted by potential clients who wanted to mediate, but didn't really want to speak with the other parties involved. While I can empathize with the stress of a strained relationship, I also know that to mediate without communicating is simply impossible. It is imperative that each party commit to sitting down together, and be willing to engage directly with the other people in the room. I can't help a potential client if they are unwilling or unable to talk to the other party. That's what regular lawyers are for!

I've had several clients recently who have told me that the only time they can talk to the other party about difficult issues is when they are in mediation with me. You may be surprised to learn what is possible when you openly communicate with the other party in a safe, facilitated space. Many of my clients are confronting deeply challenging, emotional issues. We all can use a little help sometimes, and mediation provides a neutral zone in which you can communicate honestly with each other.

Let's be clear: mediation, while collaborative, can often be driven by self interest. To deny that would be to engage in willful ignorance of human nature. However, so long as the parties can communicate and trust each other to honor the terms of the agreement, the mediation can proceed. The hardest part is often walking into the mediation room. But if you can do that, you are well on your way to building a solution that will very likely improve your current situation.

Trust. It's a key component to any healthy relationship, be it personal or professional. And perhaps particularly important when the relationship encompasses both of these spheres. This is an issue I've come across several times in recent mediations - married couples who are also business partners, who have become unable to communicate effectively about their business. Very often, this frustration bleeds over into their personal lives (surprise!), and makes life extremely stressful at home as well as at work. While the couple may not seek a divorce, something has got to give - this level of stressful frustration with a spouse/business partner is not sustainable.

But, often, the history of the couple is so littered with broken promises, old hurts, and damaged faith, that reinvesting in the relationship in a real way is scary and may even feel foolhardy. How can mediation change this dynamic when they've tried to fix things on their own so many times before?

The answer, as I like to flatter myself, is that they are now accountable to a third party. In the past, the couple may have struggled to communicate; one party may believe they are clearly expressing themselves when the other party understands something completely different.

In mediation, I help the parties to draw up a contract that details their respective responsibilities. It clarifies the communication process, and leaves no doubt about about whom is responsible for what. It forces them to discuss, in detail, and with specificity, what their expectations are. With a well-written agreement in place, it becomes possible to rebuild trust by sticking to the terms of the agreement over time. And that's a beautiful thing.

While many mediations are emotionally charged, divorce mediations are perhaps the most contentious. Not only is a partnership being dismantled, but the parties are often distraught, emotionally bruised, and perhaps angry. In such a mediation, it is essential to navigate with care, lest one party feel slighted or ignored. I find it challenging to honor how one party is feeling without over-validating them, and thus risking the alienation of the other party. It's a tough balancing act, indeed.

When it comes to controversial issues like spousal support, I find it's often constructive to give the parties a reality check - I insist that they consult with independent counsel to understand that the agreement we are crafting is indeed fair. Once they realize that they're neither being cheated nor ignored, and are often getting a better deal than they would in Court, a once-dissatisfied party will often become much more amenable to the process, and begin to collaborate with their ex-spouse and the mediator to build a workable agreement.

Kenneth Feinberg has been tapped to oversee the administration of a $20 billion fund for claims arising from the BP oil spill in the Gulf of Mexico, as detailed in today's New York Times article:

"The fund will be administered by Kenneth R. Feinberg, the lawyer and mediator who ran the fund for victims of the Sept. 11 attacks and has emerged as a troubleshooter on issues like executive compensation and resolving claims for asbestos and Agent Orange victims....Mr. Feinberg will segue into his new role as the fund administrator, perhaps setting up shop in Louisiana, just as he is nearing the end of his stint as the government’s “pay czar” overseeing executive compensation at the nation’s biggest banks, a post created in response to public outrage at bankers’ bonuses after the financial bailouts of recent years. Besides serving as special master for the Sept. 11 Victim Compensation Fund, he helped in cases involving compensation for victims of illnesses related to asbestos and to Agent Orange chemical poisoning, among many others."

With such an environmental tragedy on our collective hands, mediation is a key aspect to healing the people who are most affected by the oil spill. It's heartening to see our government making use of an expert mediator to help rebuild and clean up the spill.

As a mediator, I like to think that alternative dispute resolution is the best kind of conflict resolution for most disputes (call me biased!).  But, occasionally, a case comes through the door that should not be in mediation, and would be better served by lawyers, law enforcement, or mental health professionals. So while I am always hoping for the mediation sweet spot of compromise, collaboration, and closure, here are a few types of cases that an ethical and savvy mediator should avoid (or at least proceed with extreme caution), and refer to the right professional, instead:

1. Any case with a significant power imbalance should most likely not be in mediation. The parties should be on roughly equal footing intellectually, and there can be no element of intimidation or coercion. Sometimes a slight imbalance here can be corrected by ensuring the party at a deficit has legal representation to help with their decision making process, but not always.

2. Domestic violence serves as an excellent example in which even a represented party may not feel adequately empowered/autonomous. Even if the victim has an attorney, he or she may still be unable to make decisions without feeling the undue influence of the aggressor. In cases like this, it’s best to have the victim represented by an attorney, and walk away from mediation. Depending on the severity of the situation, law enforcement involvement may be warranted if the abuse has been hidden.

3. Any case where the parties have no trust and it seems a remote possibility they will be able to rebuild any semblance of a working relationship does not belong in mediation. Sometimes, a mediator needs to calmly look at the level of conflict and distrust in the room, and decide for the benefit of all concerned that mediation is not going to work. It can be a welcome challenge to help clients rebuild their faith in each other and steer them towards resolution (and very satisfying to work successfully through this challenge as a mediator), but it’s worth keeping in mind if the clients would be best served by having their respective attorneys hash out the details, saving time, expense, and the aggravation of a mediation that is not making progress.

A conscientious mediator needs to be quite certain that the parties are fully informed and empowered at every step along the way to a signed agreement. Otherwise, a mediator runs the risk of having the agreement invalidated and being on the hook for malpractice. Both of these unpleasant scenarios can be prudently avoided with a few choice questions during the initial client interview (domestic violence screening, analysis of the relationship between the parties), and a careful monitoring of power dynamics as the mediation progresses.

Life as an attorney teaches some firm and hard-won lessons. Be assertive! Advocate! Never let the other side get away with anything! And of course, when representing a client in mediation, the same rules should apply – right? Well, not always. Too many times I’ve seen highly skilled attorneys run a mediation right into the ground, simply because they are unable to table their agendas long enough to understand what their clients really seek to gain from the alternative dispute resolution process.

It’s not really our fault. Law school and law practice teach us to be zealous, guarding our client’s interests from attack and launching our own offensive at the same time. But at its core, mediation is about collaboration. In order to build an effective agreement, there must be a baseline of trust and respect between the parties (and between their attorneys). This can be difficult in a case that has already entered litigation, but then how much more vital is it for the attorneys to set the collaborative example for their clients? And don’t forget (should the mediation take a turn your client cannot abide) – each side always has the option to walk away from the mediation table – but conversely, all parties should enter the mediation room in a good faith spirit of negotiation.

The best advice I can give an attorney representing a client in mediation is this: have a candid conversation with your client about their goals, determine where they are comfortable with compromise, and ask your client if there are any non-negotiable items. Ask for breaks from the mediation as needed to check in with your client. Let your client speak if they are comfortable with voicing their own concerns. Brief your client on the collaborative nature of mediation, and encourage them to enter into the process in good faith. Fully and honestly brief the mediator about your client’s stance, and indicate what information should remain confidential. And, perhaps most importantly, lead by example. Mediation is a personal process that has great power to resolve conflict – if it is allowed to be personal.

1. Does everyone want to mediate? This is essential. Make sure that all parties want to use mediation, and are committed to working through the process together with the mediator. Mediation is a very efficient, cost-effective method of dispute resolution, but it won’t work if the parties can’t have a conversation or be in the same room.

2. Be prepared to compromise. Everything will not come out 100% the way you want in your mediation. But you will walk away with an agreement that works for your family, your former business partner/landlord/client, and allows you to move on with your life while honoring your obligations. Take advantage of the tailored approach mediation offers – ask for things you really want and/or need, and be creative. Each item doesn’t have to split 50/50, but the overall picture should be equitable.

3. R-E-S-P-E-C-T. Time and again, I’ve seen clients work toward resolution by employing this one approach. I insist upon it in my mediations, and I find that if a party shows respect, more often than not they will receive it in return. When the person across the table feels that you are treating them fairly, they will be much more amenable to the construction of an agreement that includes things you want, too.

4. Speak your mind (but don’t interrupt)! Mediation, when done well, is a beautiful thing – but if things are headed in a direction with which you don’t agree, you have an obligation to speak. The agreement won’t last if it’s impossible for you to truly subscribe to it. However, when speaking your mind, remember tip #3, and don’t interrupt.

5. Be honest. The Court requires disclosure forms for a reason (in divorce cases). If you fudge your assets, the whole agreement could be invalidated. But this tip holds true for all types of mediations. You’re collaborating. Don’t let your actions hinder collaboration.

6. Try to be empathetic. Divorce is hard. Really hard. You thought you were going to spend the rest of your life with this person, and it turns out that’s not the case. It’s horrible. But the thing to remember here – and this is important – you’re both in a lot of pain. The more kindness you can show to the other person, the more likely they are not to hate you when this is all over. And if you have children, that’s vital. If you don’t, it’s still pretty great. In non-divorce mediations, the stakes are perhaps less emotionally high. But perhaps not. You entered into an agreement to work with this person because you believed it would be a profitable enterprise. Things didn’t work out – you’re disappointed? So are they. Strive to let everyone walk away with their dignity and you may be surprised with what they will offer.

7. Choose the right mediator. You’re going to be spending a chunk of time in the same room, and this person is responsible for crafting an agreement that reflects your decisions. Choose a person whom you trust, who takes the time to get to know you. Often, the best way to get a sense of a mediator’s style is to look to their former clients. Look for client testimonials, or yelp.com reviews. Are they on court panels? Where did they train? Do you have a good rapport with them? Can you afford their services? Many organizations offer low-cost mediation – the Bar Association of San Francisco is one of them.

Follow these tips, and your mediation is sure to be much smoother - but remember the most important thing: keep an open mind!

I got a phone call yesterday from a prospective client who is trying to recoup a relatively small amount of money from another party. After listening to his story, I asked him to consider whether or not it was actually worth it for him to pursue the claim. If he went to court, filing fees would quickly pile up, and if he decided to mediate, my hourly rate would quickly overshadow the original amount under dispute.

As a mediator, it's important to behave ethically when discussing options with prospective clients. While I love to mediate, I have to ensure that it's the best possible path for my clients to take. We'll see what this client decides to do, but I feel like I've fulfilled my ethical duty in this regard.

"Haven't we already decided this?" I thought to myself as my clients launched into a discussion about an issue, that, to my mind, we had already resolved weeks ago. Yet again, I was about to relearn the lesson of client-centeredness, originally imparted to me in law school. If I am going to remain dedicated to the concept of facilitative mediation, it meant we were going to hash out this same issue, again, and perhaps with a different result.

But at what point is it my job to direct the mediation, preventing us from going over and over the same issues time after time? I think the answer is, perhaps unsurprisingly, a fine balance. I don't want to hijack the mediation agenda, but it is probably my responsibility to keep things moving. I bill by the hour, and I also have my clients' budgets on my mind - I try to be respectful of their financial situations. I've found that when I bring the amount of time and money that we've spent on any given issue to their attention, they quickly become more focussed and directed. While I want to encourage discussion, I also feel it's my duty to enable efficiency.

However, this is also potentially their only chance to be heard, in a real way, by the other party. So once again, it's a thin line between active listening and over-validation. And I try my best to let my clients decide whether or not we're ready to move on - I just want to make sure they have all the information to decide whether or not they want to linger.

In last Thursday's New York Times "Home" section, one of the articles on the front page, "Within Arm's reach," discussed a recent divorcee's quest to remodel her tiny (600 square feet!) new apartment to maximum effect.

Now that's charming, and it's fun to see how her team of interior designers helps her to achieve a beautiful end-result, but for me the really interesting part of the article is here:

She also said that when she and her husband of some 20-odd years divorced a few years ago, they used a mediator because they were determined that their marriage would have a "graceful end."

I couldn't agree more. Often, when I'm mediating a marital settlement agreement, I want to ask the parties, "Don't you want to honor what you had?!? You married this person for a reason, right? They were there with you for how many years? Don't you want them to walk out of here with dignity and respect intact?"

Usually, the answers to those questions are yes. Most people will choose mediation when they are still able to have a conversation with the other party, when they want to end things kindly and fairly. While it's true that some folks end up in mediation because it is cheaper (and that's true), it also requires a baseline of respect and the ability to compromise and forgive. And what better way to celebrate the graceful end to your marriage then, oh I don't know, renovating your beautiful new private retreat with all the money you saved?

What makes an agreement effective? What can the mediator include that will help to ensure that the agreement is lasting, realistic, and appropriate? What should parties seek to include to help them implement the agreement in good faith?

While each mediation is different, a good rule of thumb to follow is to make the agreement as specific as possible, so the parties know exactly what responsibilities they have accepted, and how they are expected to act in the future. Specific means including dates, times, exact amounts, methods of exchange, potential remedies, and a host of other concerns that may seem like overkill in the mediation.

However, including these kinds of details minimizes potential confusion in the future, and also makes it difficult to disagree over the meaning of certain terms in the agreement later. For example, in a divorce mediation, it's very important to specify how much support will be paid, by whom, at what point each month (every second Tuesday, or bi-weekly?), and by what method (electronic transfer or check?). These are the sorts of points that can ruin a carefully crafted agreement, simply because the parties have no clear way to move forward.

It behooves the mediator and the parties to consider exactly how the agreement will work after the mediation is over - after all, the mediation is supposed to be a forum for the resolution of issues, not the creation of new ones. A tailored, specific agreement helps to curtail future problems by clearly addressing exactly how the agreement will be implemented, and how each party will abide by the terms of the agreement.

Very interesting article in the New York Times explores when being separated suits everyone's purposes, and, when it just doesn't work:

But long-term separation can create big problems. If a couple isn’t divorced, their lives are still legally and financially intertwined. If your estranged husband goes on a spending spree, you’re responsible for the ensuing credit card debt. If you win the lottery, that’s community property. Finances can swing wildly, creating an alimony boon or a bombshell should one partner eventually want a divorce.

“I just had a situation where after 15 years of separation, the wife wanted to remarry,” said Elizabeth Lindsey, an Atlanta divorce lawyer. “But over the years, his assets had completely dissipated.” The wife would have profited from divorcing earlier.

A separation can also go on longer than anyone anticipated, even until death, leaving a mess for survivors. In New York State, for example, a spouse, even if separated, is entitled to a third of the partner’s estate.

There’s also the risk that you could lose track of your erstwhile partner altogether. “We see cases, usually with foreign nationals, where the husband goes back to the Philippines, and the wife wants to marry James but she’s still married to Ted,” said Steve Mindel, a managing partner at the Los Angeles law firm Feinberg Mindel Brandt & Klein. Judges now often require that a professional be hired to locate the spouse, to facilitate the divorce.

http://www.nytimes.com/2010/08/01/fashion/01Undivorced.html?pagewanted=1&ref=style: