I had a call yesterday from Josh, who is working with his wife in mediation, with another mediator. Josh called to ask me about being his reviewing attorney, and wanted to get my take on a couple of things.
Josh and his wife, Becka, were having conflicts over who would move out of their house. They had separated bedrooms months ago (Josh has been sleeping on the couch,) and have put a schedule in place for caring for their children, so that each took turns making dinner, being on homework duty – and having nights ‘off,’ just as they will do when they separate. But they are both still residing in the house.
Josh said that Becka is a type-A high strung person, who plays a lot of tennis and runs marathons, and that she has trouble not being in control. During mediation, she had said to him, “Either you move out, or mediation ends now, and I hire a litigation attorney.”
This is troubling on several levels. First of all, mediation is a voluntary process. The reason that the process is voluntary, is so that we end up with an agreement that works for both people and that reflects both people’s needs, interests, ideas, etc.
Becka was instead attempting to negotiate via threat and duress. “I will get the big guns out to destroy your life. I will spend our children’s entire college fund on litigation fees, just to make your life a living hell, I am THAT angry. You had better give in to me, or you will regret it.”
We can’t mediate in the shadow of threats. Just as – people can’t freely discuss their honest thoughts, ideas, feelings, if they fear later that they will be hit, for having disagreed with their (former) partners.
Becka is – intentionally or not – creating exactly what she threatens, because Josh may not be able to return to mediation.
What if Becka were instead to say, “I am really suffering, with both of us being in the house. Would you move out if I were to . . . “ and find some ways to sweeten the pot. Offer to give him some extra cash in the final settlement? Not take a piece of retirement that she would be entitled to? Offer to pay spousal support to him? Or pay his moving and set-up costs? Or offer more time with the children?
Then she would be negotiating. Mediation is about (1) coming to have a better understanding about what your ex needs, in order to move forward, and (2) reaching across the table, to offer something they want, in order to get something that you want.
Without the willingness to listen, hear, and try to understand the other person’s perspective, we cannot accomplish movement in mediation.