I had a call from Josh*, who wants me to be his reviewing attorney. He and his wife Becka* are working with another mediator.
Josh and Becka were having conflicts over who would move out of their house. For months they had separated bedrooms, (well Josh was on the couch), a schedule caring for their children which outlined who cooked, homework duty, nights off etc. Exactly as they'll do when they separate.
Josh said that Becka is a type A highly strung person who has trouble when she's not in control. During mediation, she 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 reflects both people’s needs, interests, ideas.
Instead, Becka was 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 just to make your life a living hell. I am angry, so you better give in to me or you'll regret it.
We can’t mediate in the shadow of threats. Just as people can’t freely discuss their honest thoughts, ideas and feelings if they fear later they'll 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 instead Becka said, "I'm suffering with us living in the same house. Would you move out if I were to . . ." Then find some ways to sweeten the pot, such as offer 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. Pay his moving and set-up costs. Even offer more time with the children. Then she would be negotiating.
Mediation is:
1) Coming to have a better understanding of what your ex needs, in order to move forward.
2) Reaching across the table to offer something they want, in order to get something you want.
Without the willingness to listen, hear, and try to understand the other person’s perspective, we can't accomplish movement in mediation.
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