Mediation in Divorce and the Value of Listening

Mediation can get you to resolution in your divorce faster and cheaper, often with much less emotional distress. Why? Because you and your spouse remain in the driver’s seat of the process. In fact, mediation is the two of you and one other person in a room together, and no one else. No judge, no other lawyers, no family members. Your resolution begins in the same way your relationship did: with two people relating to each other and minimal input from others.

I’ve been blogging recently about Collaborative Law, which incorporates some elements of mediation tactics but is not mediation. Maybe I should clarify the difference, and why my office offers both.

In mediation, both parties hire just one person, the mediator, who sits in a room with them, listens to them discuss issues and solutions, and does their best to imitate Switzerland as far as neutrality goes. A mediator can be a lawyer, but he or she is not offering legal advice in this role, or judging decisions made by the couple. Instead, the mediator sits listening for points of confluence and compromise. In essence, the two spouses are developing their own resolution with the mediator as a safety net to keep discussions fruitful.

In Collaborative Law, the husband and wife (or partners) each hire their own attorneys, but sign a contract agreeing NOT to go to court. There is financial incentive to stick to the negotiating table, but both parties have their own advocate present to point out anything developing that may be to their detriment.

Lawyers are taught to analyze and think about how the law applies to their client’s individual situations. Mediators are taught to sit and listen, not to the legal issues involved but to the positional and emotional ones that are proving to be obstacles. In other words, mediators are taught to listen more than to talk.

While trolling around for ways to express this basic concept, I stumbled upon a delightful blog about Listening by Teri McCowan at her website chickchainwalkingclub.com, in which she describes why her resolution is to make 2015 her year of listening. McCowan is a Michigan insurance executive and contributor to The Huffington Post who began blogging and group walking as a way through her divorce.

In her blog, McCowan wrote: “I was talking to a friend when I saw a missed opportunity to hear her story which was something very important to her. Soon, after pretending to listen, I found myself making the conversation all about me – no surprise. She would say something and I would respond, I know! and here’s what happened to ME, here’s what I think and this is about me, me, me. I then recognized how she may have felt shut out and down.”

Listening is a skill often lacking in divorcing couples. Like McCowan, I find that listening – to a client, to a judge, to the arguments taking place – is the first step in hearing the opposing viewpoint. As a lawyer, you have to be sure you have all the information and understand the nuances of a situation, as well as the provisions of the law in order to craft a counter-argument or advocate a position. The same principle holds true for couples negotiating property division and custody issues.

I’m a frugal person myself, so there came a point in my practice a few years ago when it seemed obvious that clients might save themselves a tremendous amount of money by perambulating this conversation themselves, with a little help to really listen to each other. That’s why in 2000, I began training as a mediator, to facilitate these conversations in my office. I approach mediation in two-hour sessions, as I’ve found that’s about the longest two people can talk without fatigue. It typically takes two to three sessions to arrive at a basic agreement, which the parties can then translate into legal documents themselves, or hire another lawyer to review.

The goal is to arrive at fair resolution before situations escalate. I’ve seen many relatively calm divorce settlements arrived at this way, and even a few miracles of reconciliation. It seems that the mere presence of a mediator can create a platform for better listening between arguing parties. Some percentage of clients move on to traditional representation, but generally I find the element of listening entailed in mediation – my listening to them, the parties listening to each other – to be productive in divorce settlements, as long as spouses can agree to sit down and talk to each other.