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The Intractability Barrier in Child Dependency

A 95% agreement rate over three years (114 for 119 in 2016, and 163 for 171 in 2017) in one of the most intractable conflict arenas offers another reason for optimism for the future conflict engagement.  Conflict can be skillfully avoided, strategically frozen, ripened, contoured, mitigated, managed, or resolved.  Our words are our tools; and I have found, an economy of the right words, what I’m calling Rapid Mediation, results in faster disruption of conflict schemas.

A little knowledge can be disempowering; and the little that regular folks know about mediation is keeping societies from embracing it.  Still, we’ve come a long way from the first time I googled “mediation” and the response came back, “Did you mean meditation?”, and when I looked up the definition of mediation and google came back with, “Mediation: Arbitration”.  Please, mediator, remember, Mediation is the only form of assisted dispute resolution where volition is a defining characteristic.  See: Defining Mediation, by um, me.  (You see, I’m leaving a trail of cookie crumbs to follow.)

Peacemaker, you like me, may have figured out that we don’t need to solve the World’s problems directly; we have good people working on that now.  Our part is to help people engage conflict more successfully & less harmfully.  It’s been said, Life begins at the end of your comfort zone.  It’s up to us to heed the call, believe in the unbelievable, resolve the unresolvable, and change the immutable, because when you find mediation, mediation finds you.

During this holiday season, I have no gift for you, but I can play my drum for you, so to speak, by sharing some stories of success tactics & techniques, and hope for the next stage in human evolution.  (Names have been changed.)  It’s not so much what we don’t know that has people engaging conflict harmfully and unsuccessfully, it’s what they know that ain’t so.  

Sound tangled enough to be called intractable?

First, we need to set a rather unpleasant stage.  When there has been harm to a child or there is credible risk of harm, the County Child Dependency system is tasked with intervening.  Cases range from a DUI with the children in the car to much more serious cases.  It is not unheard of to mediate Parenting Plans for surviving children.

In one scenario, imagine Dad gets a call one night.  His child, whom Mom may have kept him from seeing since s/he was born, has been taken into protective custody.  Does he want to come down and take parental responsibility, is there a relative who will, or should “the department” start shopping for shelter care for the child?  Let’s say Dad gets over the shock in a timely manner, and heads down to pick up his child.  He rearranges his life, breaks his lease, moves from a one bedroom to a two bedroom apartment, buys a little mermaid toothbrush & some clothes, and gets his kid enrolled in kinder care near him.  18 Months later, Mom has completed her classes and is testing clean.  She wants her child back; and what do you think Dad has to say about that? 

The Rapid approach begins by seeking out the Best Alternative to a Mediated Agreement (BATMA), which, here, means parents can seek an inelegant justice from a judge and attorneys, or parents can create their own customized Parenting Plan with all the details that can make it durable, because it matches their lives and their child/ren’s needs.  The BATMA becomes the leverage. 

With at least 180 cases at any given time, attorneys are spread thin; and I’m often amazed by their ability to recall the details of any particular case.  Judicial officers are faced with at least 30 impossible decisions about the fates of children and parents, every day.  And God forbid a social worker take a disliking to a parent.  Without adequate time spent designing a customized Parenting Plan for the Final Juvenile Custody Order with transitional guidelines to help break the cycle (conflict schema), for too many families recidivism within the judicial justice and foster care systems can become generational in scope.  Enter, the elite mediators of Southern California Family Mediation.

We are the good news.

Successful rapport-building, in the child dependency arena requires a familiarity with parents whom may not have had any family to speak of when growing up, speak the language of the streets & alleyways, and often feel victimized by a system that is overwhelmed by the sheer magnitude of the numbers and need. 

As the parents arrive in the morning, a not altogether uncommon substitute for “Good morning” is “I ain’t signing shit.”  Stepping to their side, for us, has come to mean validating their perspective and lamenting with them about a supremely challenging journey that typically includes extensive scrutiny, home inspections, drug & alcohol testing, psychological evaluations, monitored visitation, and Parenting, Substance Abuse, and Anger Management classes, even for a non-offending parent. 

Regina: His family needs to stop conversating on me (talking bad about me).  Mediator: So that’s important to you.  Let’s see if Dad will agree to a statement in the agreement that says, “Neither parent will talk bad about the other parent or allow others to talk bad about the other parent within hearing distance of the child.”  Would that be a good agreement point?

Rex: I tried to talk to her, but she clicked (hung-up the phone) on me; so I went over there, but her brother came out, and I didn’t want to catch a case (get arrested), so I just left.  I give up; ain’t no point in talkin’ to her.  Mediator: You are going to be in this coparenting relationship for the rest of your lives.  If you think it ends when Javie turns 18, it doesn’t.  There will be weddings, graduations, and even funerals.  You have to get good at coparenting, no matter how many times you try, you can never give up.  You have to learn to cooperate with each other, and at least be civil.

Rapid Mediation is as much about what not to do as it is about what to do.  Mediators who proceed from an abundance of caution tend to get wordy.  What the mediators didn’t do here was tell a story demonstrating that they could relate to the experience.  While stages of mediation may overlap & be intertwined, Rapport-Building should be concentrated at the beginning (from the time parties walk through the door).  Here them out…thoroughly…once. 

Then, later in the mediation, when they revert to practicing their conflict stories, a mediator might say, “I remember you said that; and that’s important.  Thank you for reminding me.  I want to keep the conversation productive, because time is gonna to get away from us, otherwise.  Remember, I’m not a decision-maker; so there’s no point in convincing me.”

And if they interrupt, a mediator might say, “Remember, I listened to you patiently; now it’s my turn to talk.”  In my experience, that is a respectful way of earning their respect and keeping the conversation productive.

Model Conflict Engagement Workshop

We’ve found, approaching each meditation as a personalized Conflict Engagement Workshop model creates a set of expectations for the mediators (we employ a comediation model) whereby interpersonal transformation becomes integrated into every step of the agreement-creation process, as opposed to separate from it or in addition to it.   

Mediating with Blanca & Azul was no picnic.  After 300 child dependency mediations, I have a tendency to list Agreement Points & Issues, and check them off as we go along; so I can get a bit process-focused, at times.  Things were moving along in fits and starts, when Azul said, I’d rather have the judge decide.  My comediator, Alek Segal, came up with, Okay; you want to go in front of the judge.  We want you to appear as a reasonable parent to the judge.  What would a reasonable parent offer?  Also, what do you want the judge to know about you and Mom?  Say all you want about leverage and pivot points; that mediation turned on a dime.  The agreement seemed to write itself, after that moment.  Happy New Year!

Something Rapid Mediators tend to avoid is going from the particular to the general, i.e. too many corner cases.  When confronted with a plethora of imaginative What ifs, one possible enabling response, in this environment, begins with, There is no agreement in the World that can make you act like responsible coparents… 

Mindfulness can lead to unexpected magic. 

A judge asked me if I practiced mindfulness, and I honestly thought, “What else is there; and I practice breathing as well”, but answered, “Yes ma’am.”  I share this to remind you that while people are aware of the concepts you specialize in, they are generally not aware of the depth and breadth of the applicability and import, peacemaker.  

As we often do, near the end of the mediation, after going back & forth with parents whom couldn’t be in the room together, while typing-up the agreement, we brought the parents, whom hadn’t spoken in months together for a mediated conversation.  It occurred to me that Mom was a fast thinker and a fast talker, while Dad was the opposite.  So, spontaneously, I mentioned to them, more or less in passing, as I continued to type.  “Ya know, Mom, Dad’s still formulating his thoughts to answer your question, and you’re already on to the next topic.  Some people just communicate at different speeds, and that can be enough to cause them to argue.”  I noticed a silence, so I glanced over, and they were both looking at me, as if I had just grown rabbit ears.  Then they looked at each other.  “Huh.”  “Yeah, wow.”  Then Dad began to speak, and Mom began to listen.  It may have been the first quality conversation they’d ever had.  They thanked us profusely, and left with happy smiles.

Rapid Mediators are keen negotiators.

Just as Getting To Yes is a cornerstone of modern negotiation & mediation, Multipartiality (Beyond Neutrality, Bernie Mayer) needs to be a cornerstone of every mediator’s philosophy.  The benefits of multipartiality over neutrality are many and enough for another article for another day.  But let it be said: ‘Neutral’ mediators are under-tooled for the most challenging conflicts.   

Getting Rapid means developing an acumen for inveigling creative solutions out of Conflict Partners.  The parties should be doing the heavy lifting in mediation.  However, Get creative is a marginally useful statement.  Creativity comes from genuine curiosity.  Get curious, and get the parties curious, in order to stimulate creativity.  (Peacemaker, I’m curious how you stimulate curiosity.  What comes to mind?  What has worked for you?  What are you interested in trying?  These questions are not meant to be rhetorical.)

As you know, communication expert, if we can help people understand what we understand, and feel what we feel, we are communicating. 

The elite mediators of Southern California Family Mediation (“SoCal”) don’t ascribe to tactics of agreement-by-surrender.  We model the belief, What can be accomplished in mediation can be accomplished more rapidly, if the mediators are skilled enough. 

To get Rapid one needs find courage, through respect, to communicate honestly and directly.  Avoid passive communication.  Let us not endeavor to ask how a party feels about the question of whether or not taking the garden path to a question or statement will help them understand the importance of reaching an agreement.  Instead, ask what time the kid goes to bed, or if they know the school principal’s name.     

These are hybrid mediations.

You may have noticed something interesting about what we do.  Mediation has been largely hands-off, when it comes to criminality.  Restorative Justice (RJ) mediations are, of course, the exception, focusing primarily on first-time offender youths.  Centinela Youth Services,, where I cut my mediation teeth, does a great job with RJ as well as youth-family mediations. 

Southern California Family Mediation has, since 2014, leveraged only a fraction of the growth and experimental opportunities made available by the Edelman Children’s Court’s tradition of innovative excellence.  Here, family law, divorce, and criminal elements collide.  And this article is the first, an introduction to how 19 elite, specially trained professional mediators with a great diversity of personhood are leveraging opportunities which will have broad and deep impacts on the field of mediation.

Rapid Mediation

Briefly, Rapid Mediation is based on the concept that Our words are our tools.  I take that to include the use of silence, one of the most powerful negotiating tools.  Mind-reading is not a tool of the mediator.  Please, don’t assume you know the ending of people’s statements.  Mindreading is a likely part of what got them into this mess.   

Silence.  Make sure the parties get to own it.  It’s theirs.  And if they haven’t yet, by the end of the mediation, they will have earned it.  Mediation is their chance to learn the lesson of the conflict and take control of their own lives.  Your patience can be a gift so rarely received from conflict in its indigenous environment.

Intractability Methodologies, as Scalable to Societal, National, and International

Ken Cloke, the legendary author and international mediator, and I were created by different cauldrons.  For Ken it has been social, political, and economic inequalities and interpersonal conflicts, whereas my cauldron has always been interpersonal conflict, which everything may boil down to (See what I did there?), though interpersonal conflicts don’t occur in a vacuum; they occur within socio-cultural environments & contexts.  I am apolitical.  In his latest generous sharing of amazing insights, Conflict Revolution, Ken sees conflict resolution (conflict engagement) techniques as being scalable.  If that is indeed the case (and he would certainly be the one to know), then, I believe, the specific micro-successes and methodologies of Southern California Family Mediation offer opportunities for audacious macro-successes.

When the mediation seems darkest and tangliest, remember your purpose and mediate as if your life depends on it, because theirs can.  A lot of little agreements add up to one big agreement, but try not to narrow it down to only one issue.

I hope you got some value for your time reading this, mediator.  Now, get out there and get great, or greater, and learn to condense your creed.  I always lead with, Conflict can be dealt with more successfully & less harmfully.  Make it your own or come up with a better way of fixing the fact that the need for mediation dramatically exceeds the Demand.  Through the use of what I call Rapid Mediation, the Southern California Family Mediation team is standing on the shoulders of giants, getting agreements created consistently, faster, and with more durability, helping to resuscitate the only form of conflict resolution where volition is a defining characteristic, because no mediator should have to work for free, after their first 100 mediations.



Randy Drew

Specializing in the impossible (well, if I get to write it), L. Randy Drew is Co-Executive Program Director of Southern California Family Mediation, humbly serving the California, Los Angeles Superior Dependency Court, and in partnership with the University of Southern California Gould School of Law’s Judith O. Hollinger Dispute Resolution… MORE >

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