They say timing is everything. In mediation, timing has an impact on every stage of the mediation process. Some issues of timing involve practical decisions like what time of day do you conduct the mediation. Other decisions are more nuanced like how do you address the situation of one party wanting to move the mediation faster or slower than his or her partner. This article addresses some of these issues.
1. When is the mediation occurring?
Everything from the time of day to the time of week and even the time of year can have an impact on the mediation process. For instance, you can imagine that there may be a difference in your clients’ moods and attention spans and focus depending on whether the mediation is occurring on a Monday morning or a Friday afternoon. Given how difficult it is sometimes to coordinate three schedules for the mediation to occur, there may not be a choice as to when the mediation occurs. However, it is good to be conscious of the possible impact of the time of the week on the mediation. First thing on Monday morning clients may be distracted by the work that is waiting for them after a weekend. On the other hand, on a Friday afternoon, clients may be exhausted after a long week.
It is worth taking your own pulse as to whether you are more focused at certain times of the week.
Time of day is also critical to consider. I happen to like early morning mediation. I find that clients tend to be more focused, less tired and more efficient. Unfortunately, I find that late afternoon mediations tend to be the most popular as people often want to schedule mediations after work. While I occasionally schedule mediations after 6:00 PM, I find that clients tend to be pretty burned out by that time of day particularly if they have been working all day. If I have been mediating all day, my energy also has waned significantly by 6-7:00 o’clock.
Which month you are in can also affect the mediation. I find that in December, clients are often putting off dealing with difficult issues so as not to ruin the holidays. In January and February, I find some clients postponing or cancelling appointments because they are paying the bills they incurred over the holidays. I often see that in late May and June clients with kids are distracted by end of the year concerns, graduations, and kids going off to camp. Late August often sees a flurry of activity. This makes sense as people are needing to arrange children’s school schedules and starting to think about the holidays. In August, clients are sometimes trying to rush to finish their mediation in order to get into court by September 2nd so that their divorce is final by December 31st. (see below).
We all have many different pressures and commitments pulling us in many different directions. There is probably no time during the year when these outside pressures and distractions will not interfere. Among the many things that we as mediators should be tuned into however is to simply be conscious of how and whether the time of day, week, month or year may be affecting the mediation and knowing when it might be useful to push clients to schedule or delay a mediation.
2. The clients’ timing.
It is often the case that one client is the “moving party” and wants the divorce and the other party does not. A common tension that occurs is balancing between the party that has one foot out of the door and wants the divorce immediately and the client who is still in shock and not quite sure how the marriage fell apart. If this is the case, it is helpful to reflect this tension back to the clients and have them discuss how they will address this important issue of timing. As a practical matter, while the non-moving party cannot stop the divorce, he or she can certainly delay the process. It is much more useful for the parties to discuss the situation, deal with any interim issues that must be dealt with and agree on a time framework.
Similarly, you as the mediator can certainly try and help the timing issue by having regularly scheduled mediations. However, again, if one party is simply not ready to move forward, he or she is likely to frustrate the process with cancellations and delays. Ultimately, both parties are likely to have to make some concessions in the process to move forward and it is critical to be proactive and discuss this issue rather than to let is fester in the background.
3. Time between sessions.
What is your approach to scheduling appointments? Some mediators have a very formalistic approach to scheduling appointments. Mediations occur at regular intervals (like for instance every two weeks) until the mediation is resolved. Other mediators look to the clients to determine the pace of the mediation. This ultimately comes down to a philosophical decision of the mediator. Are the clients in control of this part of the process or are you?
There are some significant advantages to having a very rigid schedule. Clients are likely to procrastinate far less, particularly if they are charged for cancellations. Clients are less likely to have tug of wars over scheduling if a specific schedule is built into the mediation process. To some extent, clients may want this. If it is too easy to delay making appointments with the mediator, there may be more of a tendency to do so.
On the other hand there may be benefits to letting the clients determine the pace. This tends to be my approach. I like to give clients as much control of the process as possible. I also think they often need the time and rather than superimpose an arbitrary time framework on them I like to give them the opportunity to take as much time as they need. I have had clients start the process and then take a year hiatus. I often find that after a significant time period has passed, they are in a much better position to discuss issues rationally and have gotten over much of the initial pain and difficulty of the separation. In addition, even if there is some procrastination, eventually reality catches up and the issues around separation and divorce must be dealt with.
Ultimately, a decision you as mediator should make before even meeting with clients is who is going to determine the timing, you or the clients? Are you going to end the session by asking them “When would you like to meet next? Or, “ Would you like to schedule another appointment today? Or, “So, let’s look at two weeks from now to see what is open.”
4. How close in time is the mediation to the breakdown of the marriage?
When clients come in and emotions are still raw, I sometimes may subtly encourage them to take some time before finalizing any agreements. If there has been a critical event leading to the breakdown, such as an affair, a criminal act, a betrayal of trust, it is often helpful if possible for the parties to put some time between them and the event and let emotions subside. Agreements that are reached when parties are at the height of their emotions are more likely to fall apart or be resented in the future.
The other side of the equation (not dealt with in this article) involves cases where the parties are getting divorced after years of being apart. Interesting legal issues come up in those cases as to what is marital property and debt? Do you go by values at the time of the separation or present? Do you use their present incomes or incomes at the time of the separation? The point is that distance between the separation and the drafting of an agreement is often beneficial, but too much distance can create some difficult issues.
5. Timing of Mediation in Relation to Taxes.
In Massachusetts, if the parties want to be divorced in the eyes of the Internal Revenue Service, they have to have their court hearing on or before September 2nd (for a 1A divorce) or on or before October 2nd (for a 1B divorce. If they have their hearing prior to those dates, their divorce will be final before the end of the year and they can file their taxes individually. You may make parties aware of that and this may have an impact on the pace at which they want to finalize their divorce. While there may benefits to their finalizing the divorce by those dates, as mediator you must be cautious of not letting the tail wag the dog by clients being so caught up with getting the divorce filed by a certain date that they cut corners a or do not perform due diligence on other aspects of the divorce. When the divorce is filed may also ultimately have a tax impact on whether alimony can be deducted for that year in alimony cases. It is a good idea to keep tabs on this issue if alimony is involved and the mediation is happening in June or July. It is also useful to speak with court personnel in your local court to have an idea of how long it takes to obtain a hearing once all the court papers are filed.
These are just a few examples of the interplay between timing and mediation. As mediators, one of the hardest skills is the ability to focus on so many things at once. I visualize it like a superhighway with layers of intersecting roads going in different directions. We are listening to the individuals in the room while at the same time, checking their body language and their interaction. We are thinking about our internal reaction to each of them. We are monitoring our own biases and we are monitoring our own distractions. Being conscious of time and the role it plays in mediation is one more level to be aware of and monitor.
Richard Salem describes his time serving as an intermediary between police and the black panthers in Richmond, California.By Richard Salem
Arbitration News Blog by Herbert Smith. Article by Andrew Cannon, Christian Leathley, and Vanessa Naish.On 16 September the European Commission published detailed draft proposals for the investment chapter in the...By Herbert Smith
From the blog of Nancy HudginsI’ve been thinking about persuasion, and how, as negotiators, we can gain the other side’s cooperation in settling a case. This led me to Carl...By Nancy Hudgins