© 2014 By Bill Eddy, LCSW, Esq.
A generation ago, most family law clients went to court for dividing debts and property and to decide issues about the children. Most people had lawyers to advise them and to argue the facts of the case and hardly any of them spoke out in court themselves. They hoped for a favorable result and let the attorneys take care of it. It used to be that the majority of litigants accepted the judge’s decision and went on with their lives even if they were not entirely happy with the outcome. Things are different nowadays. Among other things, litigation costs are enormous which drives more family law litigants to represent themselves in court and seek alternative dispute resolution such as mediation. In mediation, the parties meet with a neutral mediator (preferably one with expertise in the area of dispute – in this case family law) in an effort to negotiate the terms of their divorce. The agreed-upon terms then become the final “decree.” The same process applies to separations, post-divorce, unmarried parent issues and other legal disputes.
According to Mediate.com, “the success rates of mediation processes range from 80% to 85%,” so it’s an attractive alternative for many people – but what’s the downside? Mediation is a process that works best when the parties can effectively communicate. Well now, there’s a hiccup! It’s likely that poor communication played a large role leading to the breakup, so how do you do it now, in the throes of divorcing when emotions are at an all-time high? Part of the answer is that mediation is a controlled process and your mediator’s job is to help you reach those tough decisions and guide the discussions in a calm fashion. The mediator does not have a magic wand, however, and s/he cannot force someone to behave or be reasonable, so the other part of the answer lies with the clients themselves, and their ability (or not) to adjust their typical mode of communication with the soon-to-be-ex.
Yes, You Can Mediate Successfully
“My spouse will never be able to sit in the same room and discuss things.” I’ve heard that one a gazillion times, yet after mediation, most of those clients walked away with an agreement after a few sessions with a mediator. What’s the difference between those clients and the ones who ended up battling in court? They learned how to communicate differently. They also realized that they can go home and argue about credit card bills for free, so if they want to get the most out of their mediation money, they best learn how to effectively deal with the spouse even if it’s just for the duration of their divorce mediation.
Successful mediation clients go out of their way to weed out the emotional aspects of what their spouse says and focus on making and listening to proposals. After all, aside from children’s matters, divorce is really just a numbers game of 50/50 or so. It does not legally matter if your wife is an idiot or your husband is a narcissist so you can determine math and division regardless of their opinion of you or yours of them.
Ideally, proposals will include Whodoes What, Whenand Where. For example, “I propose that I be the one who picks up Johnny at school about 2:30 and takes him to soccer practice” is much better than saying: “You never took Johnny to any of his soccer practices. You made me do it, and then you showed up at his games and made it look like you were such a good parent. You’re always doing things like that!” The first sentence hits the “W” factors in a non-accusatory fashion while the second sentence will only sentence you to hearing the backlash.
People can get stuck talking about the past, so proposals are always about the future and are not about why a proposal was made. Why is not one of the “W” factors because “Why did you say that?” can translate to “I think that’s a bad idea,” which will likely lead the other person to defend the proposal loudly. If you think it’s a bad idea, you can simply make your own proposal – until you can both agree on something.
Change Your Attitude to BIFFitude
During mediation and between sessions, you will run across touchy subjects and be the target of criticism and/or accusations. When you are being blamed, it will be particularly helpful to understand and apply the BIFF Response® concepts: be Brief, Informative, Friendly and Firm.
For example, “Johnny can’t be late and he needs to be at soccer practice at 3:00. You are always late with everything. That’s why I always had to do it but you took all the credit for being a great parent by only showing up to his games!” To be BIFF, you first need to look at the statement and see if there is anything worth responding to at all. The only factual issue is getting Johnny to soccer practice. While it feels natural or important to defend yourself from accusations, you should remind yourself that it’s just an opinion you don’t share and that by responding to it, you’ll invite more of the same. “That’s a load of crap. I’m not late all the time, YOU are!” is an open invitation for the other to respond with, “Yes, you are! You’re mom even says so,” yadda yadda … and in the meantime, nobody is talking about how to get your child to soccer on time.
Try: “Thanks for bringing up the soccer practice. I propose that I pick him up by 2:15 to make sure he is on time. Can you pick him up on Tuesday when I work late? Please let me know by Sunday evening at 9:00.” It’s Brief – only four sentences. It’s Informative: a proposed pick-up schedule. It’s Friendly – you said “thanks” and acknowledged the issue was important. It’s Firm in that you didn’t bite on the personal accusations and steered the discussion forward by asking for a decision about Tuesday.
If you are on the clock in mediation, or just to keep from having the same arguments that led you there in the first place, you don’t want to be derailed into a debate of who did what or who is a jerk. Just stick to raising and responding to factual/practical matters by being BIFF and making proposals. The blog will have ongoing information about BIFF Responses and how to use them effectively. You can also get the BIFF book or some personal help for a very inexpensive investment in your future, and see related articles.
BILL EDDY, LCSW, ESQ. is the co-founder and chief innovation officer of the High Conflict Institute. He pioneered the High Conflict Personality Theory (HCP) and is viewed globally as the leading expert on managing disputes involving people with high conflict personalities. He is the author of 20+ books and has a popular podcast and a blog on Psychology Today.