The Creative Solution Table of Contents
Summary:
Chip Rose’s chapter discusses three mediation workshops he and Don Saposnek facilitated, focusing on case studies where mediations went awry. The workshops explored two main categories: cases failing due to client actions and cases where mediator actions (or inaction) contributed to negative outcomes. This chapter highlights intervention strategies like preemption and reality testing to mitigate future issues. Rose, a highly experienced mediator and educator, emphasizes the collaborative nature of successful mediation and the potential for even skilled mediators to encounter challenging situations. The overall aim is to share insights from experienced professionals to improve mediation practices.
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“Train Wrecks” is the title that Don Saposnek and I gave to the three workshops we facilitated at the just concluded 3rd annual APFM conference in San Diego. Conference chair Ken Neumann’s long held desire to create some master classes at our conferences aimed at the most experienced mediators. Putting our heads together we decided to facilitate a kind of peer review in which several participants would put forth a case or circumstance that was troubling for them and to ask the other very experienced participants to engage in a dialogue with them by probing deeper into the mediator’s experience of the case and offering ideas and suggestions as to what other’s might have done differently—where different was helpful and/or appropriate.
Two categories of cases emerged from the group discussions. The first was the case that turned out badly but not because of any errors or omissions on the part of the mediator, but rather as a client decisions, choices, or actions that caused the case to end unsuccessfully at best or become a train wreck at worst. The second category involved circumstances in which the mediator might not have acted when acting would possibly been beneficial or took action that produced consequences unintended by the mediator but which may have also contributed to the case turning out badly. Hindsight, of course, is a beautiful thing and the participants who volunteered the case discussion were reminded of how much easier our review was than their role as the mediator. Although not all of the participants met this criteria, our requested filter for signing up for the workshop was that one have years of experience, considering oneself an advanced practitioner. The primary objective was to put accomplished professionals in a peer setting where the participants created a safe environment in which the members who volunteered cases would know that their willingness to be vulnerable and exposed was greatly respected and honored by their colleagues. Another objective of the workshop was to brainstorm with the collective talent and experience of all the participants in each workshop. From the feedback of the participants, it was clear that these objectives were met.
Out of the open dialogue response to the case presented, a number of strategic interventions were proffered as alternatives to how the case actually unfolded, imploded, or exploded depending on the particular case being reviewed. Preemption strategies are perhaps the ultimate act of hindsight since it is easy to hypothesize a different outcome as a response to something that was not tried and therefore did not fail.
Nonetheless, preemptive strategies can be very effective method of taking the winds out of the clients’ emotional sails when they might otherwise grow into a kind of emotional tornado. Take for example, an issue such as spousal support or alimony. In jurisdictions that have support as part of the Family Code, it is more often than not an hot button issue that can carry with it strong surges of emotion. A preemptive approach would be for the mediator to lead a conversation with the parties in which the impact of being obligated to pay support and the impact of being dependent on someone for support can be articulated by the mediator as an introduction of the subject matter, framing the experiences at each end of the support spectrum in a manner that normalizes the strong and diametrically opposed feelings of the parties. Modeling an empathic and constructive tone for this introduction, the mediator can significantly alter the environment in which the clients are encouraged to express their individual perspectives, feelings, goals, and objectives
Framing is another intervention strategy that can pay dividends and contribute to a constructive process that keeps the process on the rails and rolling forward. The process design which is fundamental to the structural design of my mediation process provides the clients with two macro frames within which they have the opportunity to maximize their collective success. The first frame addresses how each of the participants, as well as the mediator, should choose to behave during the mediation if their dual goals of maximizing the outcome to each and completing the divorce process in a manner that was as beneficial for the children as possible, is to be achieved. This frame addresses the emotional forces that come into the session with the clients like their shadows in the low sun of a clear winter day. Understanding the cause and effect correlation between their emotions and their strategic objectives in the process will aid the clients in becoming mindful of the powerful and subversive impact their emotions will have on the attainment of a resolving and successful agreement. The second frame provides the clients with a roadmap showing how their substantive issues (parenting, financial, cash flow, etc.) will be developed from the initial first meeting all the way to a settled and signed agreement. These kinds of frames help clients orient themselves during the psychological and emotional freefall that attends the breakup of a marriage or long term relationship.
A third intervention suggested in the workshops was the concept of reality testing. In one of the case studies, the parties were considering a significant change in their parenting arrangement that involved grandparents and a temporary change in the residence of the child to another country. Even though both clients were on board with the original plan and even memorialized with a homemade signed agreement, when one of the parents unilaterally altered the planned return of the child, a great deal of emotional trauma and intense litigation ensued. The crisis was not the result of anything the mediator did, as the parties reached their own agreement outside of the last mediation session. A suggested intervention combined preemption and reality testing by having the mediator take the clients proposed agreement and imagining a worst case scenario in which one of the parties–or the third party grandparents—unilaterally changed the agreement. Asking the clients to identify their options in such a circumstance and to examine the consequences if such an eventuality occurred, is an intervention that serves to pull them out of the comfort of the proposed agreement and challenges them to consider the risks inherent in such an agreement. With hindsight it is easy to see the naiveté of one of the parties having entered into an agreement that the other party subsequently breached. However, it is important for the mediator to engage in reality testing with skill and sensitivity when the parties are asked to assume hypothetically that the other breaches their agreement. Reality testing is less risky when the testing involves having the clients consider the market forces affecting real estate or financial investments, for example, when that is the subject matter of the agreement.
Two things that became clear from the open dialogue of all the participants in each of the three workshops are that there are always new and different strategies that a skilled mediator can bring to the process, and that there is no guarantee that a mediation can avoid the proverbial train wreck if either of the parties chooses to cause one. My former office mate and colleague was fond of telling clients that working together in the mediation process is like climbing together up the face of El Capitan—the 3,000 foot granite monolith in Yosemite. Her cautionary note went like this: “It takes all three of us roped together to succeed and any one of us can cause us to fail badly.”
The Creative Solution Table of Contents
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