The only thing mediators have to fear is ? rushing it

 John A. Fiske, The Daily Record Newswire

A recent telephone conversation I had with a woman who, despite her basic fears, called to discuss divorce mediation, prompts this column. She voiced a list of worries:

• “I’m afraid my interests won’t be represented. I will have no one in the room with me to back me up.”

• “When I talked with a lawyer, he completely overreacted. He wanted to sue my husband and be very aggressive. We don’t want that at all.”

• “Divorce has its own culture of contentiousness. It’s as if all my friends hear that I am getting divorced and they’re telling me I have to fight with my husband. We don’t want that at all. We have goodwill toward one another.”

• “I’m afraid that my husband will get mad at me for asking for something and I’ll back down.”

• “We’ve been separated for two years and are cooperating well around our children. Yet when I decided to move out, I was told that I’m screwed in the divorce because I was the one who left.”

There are many responses available to the listening mediator. How much time do you spend on the phone with one spouse before meeting him or her?

Do you compromise your neutrality if you spend half an hour with this woman and not talk on the phone with the husband before they come to your office?

What if you’ve already talked to the husband and encouraged him to tell his wife to call? After talking to the husband, would you ever telephone or email the wife if she didn’t call you? How do you reassure her about having left?

There may not be any responses that fully answer those questions. The listening mediator decides what he feels will help the mediation, which usually means listening a lot to the wife and then trying to answer her questions as directly and simply as possible.

The first phone call is your first chance to connect with her, after which something good may happen, e.g., she comes in with her husband to meet with you and they hire you to mediate their divorce. (Note: The last thing you want to do is call a person who has not called you first, so it’s up to her to bring in her husband, not you.)

One way to connect with her is to acknowledge her fear. Here, I was struck by how much she had already figured out. I asked her how she had come to realize what was troubling her: She would feel alone in the mediation room.

What a gift for the mediator — to be told by the client what is going on for her. In an insightful article for Mediation Quarterly in fall 1988, John Haynes described in “John and Mary: Sharing Parenting After Divorce” why he begins the mediation of a transcontinental kidnapping case by asking each parent to define the worst possible outcome in working with him. He writes:

“I wanted to find out what it was they feared the most. My experience in cases such as this is that couples are driven to mediation by fear: fear of the alternatives and fear that the worst possible outcome will materialize in alternative arenas. I believe that if these fears can surface and be negotiated early in the process, then the parties can concentrate not on defending against their fears but on solving the immediate problem.”

I like to ask couples early in the process: “What are your concerns?” I’ve found two archetypal and totally gender-based responses.

The woman says, “I don’t want to be a bag lady. I don’t want to be on the street. I want security.”

My Chinese-speaking son says that the Chinese symbol for security is a composite of two symbols: a roof and a woman under it. I love telling the couple that for 6,000 years the Chinese have said security is a woman under a roof.

Almost never does the man say he wants security. The man’s concern is his freedom: “How long do I have to pay alimony? When am I off the hook?” His fear is that he is forever enslaved.

Fear is energizing and also paralyzing, depending on who we are and how we respond to it. Some confront, others avoid. Some, to quote a recent wife, say, “I avoid talking about money at all costs.”

A couple came to me and the wife began by saying for three years she had avoided discussing their conflict because she was afraid she would lose the house. Her husband was astonished and said, “You can have the house; I don’t want it.” She gave a small scream and started sobbing.

For that woman, the mediation process became liberating. The mediator’s solution to everything is to talk about it, and by giving people a place to talk we give them a safe place to confront their fears and to liberate themselves. Then they have to decide what to do.

The problem with negotiating is that we don’t always know what we want. We don’t spend the time and hard, lonely work walking in the wilderness to figure it out. People who ask themselves about their own concerns will be on the right track and may be astonished at some answers.

Until you know what you want, any negotiation is dangerous. My wife suggests that therapy may help a client focus so that he or she can answer: “What is most important to me? What do I care about the most? Why?”

In addition to therapeutic insight, divorcing clients benefit from living apart for a time. In a course I took years ago at the Boston Psychoanalytic Institute about the psychology of divorce, neither the teachers nor the students could agree on anything, except that it’s easier to work with clients who have been living apart for at least six months than those still living together or only recently separated. After six months, couples have experience with what works and what doesn’t and are beginning to figure out their own priorities.

Listen to two therapists in my office discussing their own divorce:

Husband, exasperated: “Why does it take you so long to make a decision?”

Wife: “I have to consult with My Committee.”

Husband: “Who the hell is that?”

Wife, putting her fingertips on her stomach, “I have all these voices.”

So I’m constantly slowing people down and telling them, “Don’t agree to anything until you’re sure it’s right for you.”

It’s also about readiness. When people are ready to agree, they will agree — and not a moment sooner. When Hamlet says at the very end of the play, “The readiness is all,” he could be talking about our clients and ourselves.

In a voluntary process such as mediation, no one should agree to anything before he or she is ready. Rush into nothing. The process and the result will be worthy of respect for years to come.

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John A. Fiske is of counsel at Healy, Fiske, Richmond & Matthew, a Cambridge firm concentrating in family law and mediation. He can be contacted at www.mediate.com/fiske.

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