The Creative Solution: Nobody Said It Would Be Easy

The Creative Solution Table of Contents

Summary:

This chapter discusses challenges faced during mediation sessions. Chip describes several scenarios, including clients engaging in unproductive verbal attacks, fixating on unrelated issues, and dealing with interfering family members (“Greek Chorus”). Rose highlights the importance of adapting mediation strategies to suit individual client needs, using techniques ranging from facilitative approaches to more directive interventions. He emphasizes the need for mediators to understand and manage client dynamics to achieve successful outcomes, showcasing his personal experiences to illustrate these points. The chapter concludes by reflecting on the unpredictable nature of mediation.

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Chapter 6: Nobody Said It Would Be Easy

My aspirational goal, when I first decided to experiment with this new idea called mediation in late 1979, was to work with highly functional, wealthy, low-conflict clients helping them reach agreements while bidding farewell to the adversarial practice of law.  Well, one out of four is not bad.  In the course of this journey there have been many hard-learned lessons.  One of the most important is the realization that we have to accept the clients as they come into the process.  I think of this as Newton’s First Law of Relationships—we can want people to be different but they are going to be who they are.  The lesson for mediators is learning how to accept who they are, acquiring the skills to engage with who they are, and developing the capacity to facilitate a process that helps them achieve their goals. That the clients themselves need to understand this First Law and embrace the reality of it, if they are to be successful, is a topic for another column.

I recently had an initial mediation session that challenged all my facilitative skills to say nothing of my patience as well.  As is frequently the case, a mediator is faced with the raw dysfunction of two clients from the moment you sit down in a first session without the requisite time to learn who they are and what they need, nor the opportunity to educate them about effective and ineffective behaviors.  A variety of challenging behaviors and dynamics may be presented which require an array of intervention strategies and responses.  Inspired by this most recent experience, let me identify some of those circumstances.  

Clients engaging in verbal attack and defend dialogue from the opening bell.   In the particular instance I am thinking about, the parties attacking and defending one another did not rise to a dangerous emotional level, such that I needed to intervene to protect either one of them.  Rather, it was like watching two cars facing each other in the mud each with the wheels spinning and creating a verbal mess while gaining no traction whatsoever.  The dynamic grew “out of control” not as a result of escalating emotions or heated rhetoric (in fact, the parties kept their monologues in an intense but conversational tone).  Rather the lack of control resulted from their complete disregard of the agreed-upon protocols for the process and their laser focus on one another ignoring the attempts on my part to help them become aware of the futility of what they were doing.  My default style is to begin as facilitatively as works for the clients and only begin moving along the Riskin continuum towards evaluative as circumstances require.  In this instance, as my initial attempts to interject these observations verbally bounced off the energy beamed back and forth between them like a puff of wind off an armadillo, I moved further down continuum, holding my hands up in the universal sign of “time out”.

My next strategy was to close my pen, close my file, fold my arms and push back my chair in an act of unequivocal body language communicating my disengagement from what they were doing.  I then reminded them of how much the session was costing them neither of which actions dented the dynamic.  This was when my patience took control.  I had made special arrangements to see them at a time when I normally did not have clients and definitely would not have accommodated their circumstances had I known this is what they would do with the time I scheduled for them.  It was at this point that I reached the other end of the continuum and commanded them to stop talking.  The next stop on my intervention rail line was for me to walk out of the room which thankfully we did not reach.  To the clients’ credit, they were not offended and upon reflection, agreed that what they were doing was getting them nowhere.  That respite in the whirlwind of their conflict finally allowed me the opportunity to ask them if they would be open to a more effective method for identifying and exploring the issues to which they readily agreed.       

Clients Obsessed with Pressing Unrelated Issues

The practice of mediating relationship issues quickly teaches us that each is organically connected to every other issue like the strands of a spider’s web.  Assuming that the clients don’t want their settlement to look like a Jackson Pollock painting, it is also true that in order to make any sense of the issues and the options for resolving them, they need to be examined one at a time while identifying areas of interconnectedness between them.  In this particular instance, the clients each maintained a death grip on their individual issues, like trees at opposite ends of their forest, thereby preventing any effective approach to understanding either of their interests, concerns, or objectives with either of their self-selected issues.

Having tried a variety of more facilitative interventions, I finally pulled the plug on the wasted words and told the clients that I was going to use my mediator discretion and spend some time with each of them separately.  Keeping mind that this was a very first session, I did not yet know much about the clients nor did they know me or the range of skills that I was putting at their disposal.  The use of a caucus with each allowed me to do several things.  One was to create a kind of initial connection with each that was not possible in the joint portion of the session.  This is an opportunity to let each client hear in the calmness of a caucus environment that you as mediator care about their circumstances and that you can put at their disposal constructive and successful process approaches that will actually allow them to achieve their most important shared goals.  This strategic intervention also allows the mediator to tailor a process response to the specific concerns of the client to whom one is speaking without having the other client becoming distractive because of his/her desire to focus on different and contrasting issues.

The Greek Chorus

As mediators, we all have to deal with the support people for each client who, in most instances are not actually at the table—what I call the “Greek Chorus”.  These people stand just outside the process and feel an unfettered freedom in giving their advice and counsel as to what the client should or should not be doing.  While the sincerity of their concerns is genuine, the value of their advice is generally worth what the clients pay for it—to wit, nothing.  It should also be observed that it is far more enjoyable to vicariously mess with someone else’s troubles than to have to confront one’s own.

 It is not every day that a parent of one of the parties knocks on the door to the session storms into the room, and demands to speak to his or her “child”.  It is even more unusual for this to happen three or four times in the space of fifteen minutes, an hour and a quarter into the session.  Nor have I had too many experiences in which the client having calmed down the parent in the waiting room, then receives a call from a sibling on the other side of the country shouting into the phone that the client is getting “steam-rolled” and needs to get leave the mediation session right away.  When this type of situation occurs, there is an opportunity to bring another kind of intervention into play—empathic acknowledgment.   It is difficult enough to work through the emotional, psychological and financial issues in divorce without being buffeted between the winds of “support” from one’s own dysfunctional family of origin.  On the other hand, I can’t wait to see what the second session holds.

The Creative Solution Table of Contents

Chip Rose

Chip Rose is highly experienced divorce mediator previously based in Santa Cruz, California and recently moved to Bend, Oregon. Chip founded The Mediation Center in Santa Cruz in 1980 and is certified as a Specialist in Family Law by the State Bar of California Board of Legal Specialization. In a client-centered… MORE