CONSTRUCTIVE CONFLICT- Using the Lens of Respect

Differences of opinion are to be expected in divorce mediation.  How these differences are handled is what really counts.  Mediation is an agreement-reaching process that typically goes through several stages on the way to reaching a fair and lasting agreement.  This post addresses constructive conflict as a component of mediation.

There are at least two types of conflict that can crop up in mediation:  conflict over data or information, which is also known as cognitive conflict, and conflict over feelings, or affective conflict.  Divorce mediation tends to focus more on the first kind of conflict, that which is related to facts or information, by reaching mutually agreeable resolutions.  But, to get to that resolution, in many cases, the participants need to address some affective conflict.

Affective conflict can have a greater potential to derail a productive mediation if it is not skillfully managed.  Sometimes, one party may seek to review relationship history and to assign blame for a particular outcome.  The blaming perspective is rarely productive.  This does not mean that feelings have no value in mediation; they do.  Often, it is impossible to move forward until each party has had the opportunity to state his or her truth about a matter, and to feel heard.  Then, when the parties feel truly heard, they can move on to re-viewing their situation, to seeing it again with a new focus on current and future actions rather than past history.

How can a divorcing couple break out of a cycle of unproductive, affective conflict?  Using a positive, forward-looking lens to view the total situation, rather than a blaming lens, is most likely to generate movement toward settlement.  This positive outlook is based on using the lens of respect- respect for self, for the other, for the mediator and for the process of mediation.  Mediation ground rules that emphasize respect for each participant's humanity tend to promote development of a positive, problem-solving lens for the mediation.

Establishment of mediation ground rules is crucial.  The three ground rules that I typically use are:

1.  Avoid interrupting.  (The other party can take notes of points he or she wishes to emphasize when it is his or her turn.)

2.  Speak from your own experience.  ("I-statements" convey your own feelings;  the other party will have a turn to share his or her perspective later.)

3.  Avoid showing signs of disrespect. 

When a person feels disrespected, he or she is more likely to respond with an escalation of emotions.  When feelings run high, thoughtful problem-solving becomes less likely for the rest of that session.  It may be time to take a break, or adjourn for the day.

Part of a mediator's job is to coach the parties on how to disagree without being disagreeable.  By observing the ground rules based on concepts of mutual respect, mediation participants are more likely to stay in the realm of positive problem-solving that will lead to a mutually agreeable solution. 

For more information, call 626-441-1900.






 

DECISION-MAKING IN DIVORCE -- PART 1: SHOULD WE DIVORCE?

How do you make the decision to divorce?  There is no hard-and-fast rule, no bright line to show a couple whether it is better to split or to try again to work it out.  However, divorce mediation can be a time and place in which the parties consciously examine their options and test out various hypotheses before settling on a course of action.  This pattern of “decide/analyze/implement” can lead to better, more informed decisions.

In divorce mediation, the strategic decisions often unfold in a non-linear fashion.  Frequently, after brainstorming some possible options, the couple chooses one, and tries it on for size.  That is, they make an interim or temporary decision, gather more data to confirm that it fits their circumstances, and then either confirm commitment to their choice, or investigate another option.  They repeat the pattern of decision, analysis, and searching for other options until they find one option that they can settle on as suitable for parties.

It is not uncommon for there to be a mis-match between the spouses concerning just about everything, including whether the marriage should end. Even if both parties admit that the marriage isn’t working, perhaps there is at least one good reason to stay married, such as providing insurance for a diabetic spouse.  In such cases, mediation is usually the best process to use because it allows the parties the flexibility to consider various options and then choose the option that works best for them.

What does this decision look like?  Let’s take a hypothetical couple, Pete and Mary. These are composites of clients; resemblance to living individuals is accidental.  Pete is in the information technology industry.  When he works, he makes a lot of money, but he is not presently working and is getting discouraged.  As part of his depressed mood, he eats too much and that means his diabetes is not well-controlled.  Mary is a middle-manager in a small city.  She has a relatively modest salary but decent health benefits and a defined-benefit pension.  She thinks her job is safe for now, but next year, if budget cuts continue, her job could be in jeopardy.   They refinanced their home to pay for college tuition for their two children, so that their home is now “under water” – they owe more than it is worth.  Friction between Pete and Mary has been building for a couple of years.  They both acknowledge that something needs to change.  But divorce?  To Mary, it is unthinkable.  Their first decision is to decide if mediation makes sense for them.

Decision #1 – Should Pete and Mary mediate or choose another option?

Pete and Mary contact a mediator for a free consultation, in which they learn more about how mediation could help them to sort things out.  Their mediator also provides an overview of other options such as doing everything themselves, using lawyers for a collaborative process, or retaining lawyers for scorched-earth litigation.  They go home, discuss it, maybe call some lawyers to get information on legal fees, and quickly decide to commit to mediation.  In other words, they make a tentative decision, gather and analyze more information, and then implement their decision.

Decision #2 – Should Pete and Mary choose a legal separation or a divorce?

At this point, neither Pete nor Mary is interested in re-marriage, so they are both open to the idea of a legal separation as well as a divorce.  One advantage of a separation might be that Pete could stay on Mary’s insurance policy if they are separated rather than divorced.  One disadvantage of a separation is that if either of them meets someone else, they will have re-file their separation as a dissolution of marriage, and pay another filing fee.  Also, some insurance policies no longer cover spouses who are legally separated.  Once the judgment of separation is final, Mary’s insurance through her employment may not cover Pete.  Different companies have different policies on insuring separated spouses, and changes in federal law may come into play as well.  On the other hand, Mary really wants to help Pete keep health insurance as long as possible.  Before making a final decision, Pete and Mary need to get more information about how long Pete can be covered through Mary’s employment. 

The Beauty of Mediation

The beauty of mediation is that it permits the parties to exercise flexibility and creativity in crafting a settlement agreement that meets their needs.  Overall, the couple's community property should be divided equally.  This does not mean that each asset and each debt must be divided in half.  The overall division should be fair and equal, but how this is achieved can vary considerable from family to family.  Sometimes pensions are divided; sometimes the pension goes to the wage-earner, and assets of an equivalent value go to the other spouse.  The amount and duration of spousal support, if any, is variable, and depends on a number of factors which can be explored within the context of your specific situation.

Choosing Your Consulting Attorney for Mediation

Choosing your consulting attorney requires some care.  The best way is to schedule an informational interview with a mediation-friendly attorney.  If you choose an attorney who is primarily a litigator, he or she will probably steer you toward litigation.  Instead, look for an attorney who will support you in your desire to mediate your differences with your soon-to-be-ex; for one who understands mediation and favors a respectful, non-adversarial divorce process.

Self-Help Resources for Mediation Clients

There are many reputable self-help resources for divorcing couples available online.  Nolo.com publishes high-quality consumer-oriented books on divorce and mediation, and Mediate.com has a wealth of articles, some of which are written for consumers.  Divorcenet.com and DivorceHQ.com also publish information online.  One way to evaluate any online resource is to ask:  Does the advice make sense?  Does it conform generally to what the other experts are saying?

Building a Knowledge Base Prior to Divorce

Before the decision is made to definitely go ahead with a divorce, many potential mediation clients need information about the possible financial effects of divorce.  Some of the most common questions posed by prospective mediation participants are:

• Before I tell him/her I want a divorce, can you tell me what my rights are?
• Can I keep my retirement?
• Will I have to pay spousal support?
• What can we do about our house in a troubled market?

Divorce is a major life change.  Obtaining reliable information is critical.  However, mediators need to preserve their neutrality and cannot provide specific legal advice to one party, either before or during mediation.  Doing so would disqualify the mediator from providing mediation services at a later time.  To find out more about pre-divorce resources or to obtain a referral list of mediation-friendly attorneys, call Georgia Daniels at 626.441.1900.

Mediating A Parenting Plan

Through mediation, parents of minor children can provide a framework for their future positive interactions regarding their children.  Crafting a parenting plan, and making provisions for modifications of the plan as the children grow and change, is profoundly important.  If good parenting is soon as a paramount value, then providing for the continuity and support of the children is of utmost importance.  For a free consultation, call 626.441.1900