Vol. II / No. 2
Perspectives on Dispute Resolution—
Focus
FEB 2012
4
Mediation, Family Style: What Commercial Mediators Can Learn From Divorce Mediation by Kristofer Michaud
Handling Domestic Violence in New Ways for Families 8
Dealing With the Pains of Divorce Through Meaningful & Complete Apology 14
Fairytales & Myths Applying the Hero Story to Mediation 18
Successful Post-Dissolution CoParenting: The Mediator’s Role 20
Discover
On the Edge
Commentary 28
Event: Divorce Mediation Institute: Moving Beyond the Basics 24
26
The Keys to a Healthy Relationship
Orchestrating Settlement: A Symphony of Sound and Color
25
Event: New Ways for Families, Bill Eddy / High Conflict Institute
Featured Contributors Also in this Issue
Kristofer Michaud
Bill Eddy
Dina Haddad
Jasper Ozbirn
Scott Van Soye
Kanoe Yim Wheeler
ADR in the News 3 Upcoming Events 3 Message from the Editor 3
ADR Times explores mediation, arbitration, negotiation, diplomacy, and peace. ADRTimes.com publishes articles, news and debates,
and provides an industry directory, event calendar, job board, and community space for public and professionals to connect and share insights.
Mikita Weaver Editor-in-Chief
Zachary Ulrich Contributing Editor
Publisher Mark Fotohabadi & W. Timothy Pownall Design / Production Dana Asper, Melaina Rauen The content of this publication is subject to Copyright by ADR Times, Inc. 2011-12
Message from the Editor
Upcoming Events
Sadly, the month of January is often referred to as “Divorce Month.” Couples regard the first month of the new year as an opportunity to bring out the reality that the holiday season often masks. In contrast, we’d like to dedicate our February newsletter to “Family Law” topics offering couples (and their professional advisors) ideas and alternative options that could create a collaborative and confidential environment for families to reach amicable agreements, and sustain the well-being of their families.
- 40 Hour Divorce Mediation Training New York, NY / Feb 22 - Feb 28
For instance, Bill Eddy from the High Conflict Institute highlights a new approach for dealing with family dissolution in the context of domestic violence. Scott Van Soye discusses a mediator’s role in post-divorce coparenting. Kristopher Michaud highlights the “lessons” that commercial mediators can learn from divorce mediators. We recognize that sometimes it’s more about love than the law. Family law mediator, Dina Haddad, writes an intriguing article on how to deal with the pains of divorce through healing and apology. Kanoe Wheeler writes a unique piece reminding us what it takes to maintain a healthy relationship.
This edition also highlights events for lawyers, judges, therapists, and ADR professionals to better understand and deal with the nuances of family law disputes. ------------------------------------------------------------------For more information, please contact: Ms. Mikita Weaver, Editor-in-Chief (800) 616.1202 / editor@adrtimes.com www.ADRTimes.com z
- 40 Hour Basic Mediation Training Brooklyn, NY / Feb 29 - Mar 4
- Mindgames in Mediation: Psychology in the Commercial Case London, UK / March 8
- Labor Law & Labor Arbitration Conference Seattle, WA / March 16 - Mediating the Litigated Case Washington DC / March 26 - March 31 - Divorce Mediation Institute: Moving Beyond the Basics Asheville, NC / May 18 - May 20
View the full Calendar— Submit an Event—
ADR in the News - 2.17 China Sending Senior Envoy for Syria Talks - 2.17 Harrah’s Donates $2,000 to Mountain Mediation Services - 2.17 Stalemate on Teachers Contract Continues
- 2.16 Good Year for Agriculture Decreases Number of Mediated Farm Debts - 2.15 UW-Madison and Adidas Mediate Workers’ Dispute
- 2.14 29th Ministerial Meeting of ECOWAS Mediation and Security Council in Abuja
View All ADR News— Subscribe to ADR Daily Alerts—
Focus
Mediation, Family Style: What Commercial Mediators Can Learn From Divorce Mediation
by Kristofer Michaud
Family mediation evolved separately from civil and commercial mediation because it addressed specific needs and concerns, and faced different challenges. Unlike in civil mediation, where the subject of mediation can be any claim traditionally litigated in tort or contract, family mediation deals chiefly with dividing marital assets, determining child custody and visitation, and dealing with the emotions that go along with the transformation of an intimate relationship.
Some have argued that “family mediation” is itself a misnomer -- that what we’re really talking about is “divorce mediation.” But I would argue that the term “family mediation” is actually quite apt when, as in the vast majority of divorces, children are involved. The use of the word “family” acknowledges that we neutrals are in the business of helping parties renegotiate the terms of a relationship that will persist in some form, even after the parties are no longer living together and their material assets are divided.
When civil mediators consider whether to apply the feel even more ashamed and alienated. In choosing famstrategies and insights of family mediation to commercial ily mediation, couples are attempting to preserve a civilized disputes, they ought to consider the extent to which the future relationship even as they fortify a sense of their own dignity relationship contemplated between the parties more closely and autonomy. In family mediation, time is not treated as resembles a co-parenting relationship or the “clean break” a scarce resource: Consensus is reached through joint sesof the childless couple. If it’s the latter, then the mediators sions over a course of weeks or months, as opposed to hours to the dispute would probably not have much to gain from or days in civil mediation. Unlike in civil mediation, lawtaking a “family mediation” approach. But few business relationships today are truly “childless,” and many of them are I would argue that the term “family mediation” is actually quite apt when, forged in “small towns” like the internet, as in the vast majority of divorces, children are involved. The use of the biotech, and energy industries that each word “family” acknowledges that we neutrals are in the business of helping have their equivalents of PTA meetings, parties renegotiate the terms of a relationship that will persist in some form, churches, and community tennis clubs. even after the parties are no longer living together and their material assets The business world is shrinking, and “exare divided. spouses” will often have to raise their kids together, among mutual friends and new, existing partners. A couple that wants to resolve their disputes without yers are rarely present in joint sessions and private caucussplitting up calls a family counselor, not a family mediator. ing is discouraged. Evaluative and prescriptive techniques Family mediation, therefore, is typically triggered by an ac- are scrupulously avoided. Facilitative approaches are most tion for divorce – the contemplated severing of the most inti- common, but there is a growing recognition of the need for mate of emotional bonds. It is hard for parties to be objective transformative techniques to address emotional issues and in such a case. Subjective feelings of participants can lead perceived power imbalance. to bitterness and enmity, or can be channeled into magnanimous gestures of conciliation. Due to the emotional and psychological issues at play, most family mediators are trained mental health professionals, whereas most civil/commercial mediators come from a legal background.
Like family mediation, civil mediation is most often triggered by the highly-contentious act of litigation. Emotions will also run high, with one side or both feeling egregiously wronged. Former Apple, Inc. CEO Steve Jobs was quoted by his own authorized biographer, Walter Isaacson, as saying, “I’m going to destroy [Google’s] Android, because it’s a stolen product. I’m willing to go thermonuclear war on this... I will spend my last dying breath if I need to, and I will spend every penny of Apple’s $40 billion in the bank, to right this wrong.” These are hardly the words of a pure economic actor! Family mediators (and most divorce attorneys) will instantly recognize Steve’s language and the emotions behind his words. This dispute is not all about the patents, any more than a divorce is “all about” the house or the car. Family mediators have noted that parties typically de-prioritize positions – even the “bottom-lines” that ostensibly brought them to the table, like asset division and child custody arrangements. Divorcing couples fear that litigation will force them to behave in a negative and destructive manner that is inconsistent with their values and make them
There is a right way and a wrong way to transform a conflict, however. Skilled mediators never assume that the louder, more stereotypically “masculine” party feels more empowered than the calmer, more stereotypically “feminine” party. The inexperienced mediator might feel that the climate for mediation would improve if the more outwardly aggressive Steve Jobs were to be “taken down a peg.” This is precisely the wrong type of “transformation” to attempt. Overt egotism is often a sign of weakness. Enhancing a party’s confidence makes them more responsive to the ideas of their adversary, creating a virtuous circle.
Commercial disputants are often seeking evaluative mediation, but this can exacerbate existing power imbalances if the mediator fails to notice, or actually misdiagnoses them. This is more common than we would expect in civil mediation, because power in the business world is often as subtle and multi-faceted as the power dynamic in a spousal relationship. Power over home life can be just as formidable as economic power, and Apple’s mastery of the smartphone and tablet spheres may be evenly matched by Google’s dominance in search and advertising. A skilled mediator would not assume from Steve Jobs’ aggressive language that the balance of power was necessarily tilted toward Apple. Employing the lessons of family mediation, he or she would be able to read the situation to pick up on Steve’s deep emotional needs, and address them in a way that transforms the February 2012 | 5
relationship and the discourse. Companies, like families, need to address the feelings engendered by prior behavior in order to rebuild trust and move forward.
The challenges of applying “family mediation” techniques to civil mediation, however, are many. Most proponents of family mediation assume that enhancing selfesteem through cooperative action is more important to disputants than actual problem-solving, or satisfying the needs and interests that ostensibly brought them to mediation. This is not the case with corporate clients, who are pre-disposed to positional bargaining and obtaining an equitable solution at a minimal cost. Stakeholders rarely take into account the long-term impact of failure to address emotions. It is assumed that corporations hold no grudges, and that when it makes good business sense for the parties to work together again, the past will quickly be forgotten, especially if mediation produces narrowly-prescribed solutions on a case-bycase basis. Moreover, corporate stakeholders won’t tolerate weeks or months of soul-searching in joint sessions; they want the confidentiality and efficacy of private caucuses conducted over a matter of hours or days.
For parties to a business dispute, the negative emotions that will be dredged up at trial barely register as a concern – they are thinking primarily of the pure economic cost of dispute resolution, and the likelihood of vindication. In mediation, company representatives may want to probe the record to persuade the mediator to evaluate the underlying issues of the case and assign blame. While parties to commercial mediation may welcome an elicitive/facilitative approach in the beginning, they will most likely lose their patience as the self-imposed “deadline” approaches and may seek to adopt a directive/evaluative approach based on the mediator’s knowledge of the facts of the case and of the law. The “family-style” mediator will struggle with these expectations. A hybrid form of family/commercial mediation will be most attractive where an intimate business relationship becomes unbearable for both parties due to issues that are
Kristofer Michaud
not being addressed, but where the costs of “walking away” from the opportunity or relationship are too great, such as the renegotiation of employment contracts. Non-compete clauses are common in specialized and high-tech industries. These clauses are designed to limit employee mobility by preventing highly skilled employees from switching jobs, but they also interfere with companies’ efforts to replace valuable employees. In cases where the employee is dissatisfied due to simmering resentments with his employer, the result is a stalemate. Rather than force an employee to come to toil away in a work environment that he or she is not fully invested in, the parties will need to work together to develop a solution that addresses both sides’ material and emotional needs and allows both to feel respected going forward. Family meditation has a wealth of knowledge and expertise to offer in cases such as these. In the end, “family-style” mediation will be most appropriate where, as in a divorce, a continuing relationship is necessitated by a compelling mutual interest (in family mediation, the role played by the children). The BATNA of discontinuing the relationship completely must be unattractive to both sides. This is often the case when there is a joint project that must be completed to satisfy a shared client or third party – like a dispute between contractors and subcontractors in a large construction project – or in cases involving the mutual exploitation of intellectual property or unique expertise through cross-licensing or exclusivity contracts. Apple, Inc. and Google enjoyed an especially-close business relationship in the first decade of the 21st century. They built great memories and great products together, and their “children” are still growing up. In its second decade, the relationship entered a contentious phase as Android chased after iPhone’s market share, and Apple filed a plethora of patent infringement lawsuits against Google. Nevertheless, in the industry these two great American businesses share, a “clean break” is impossible, and a little “family mediation” early on may help smooth out those awkward moments when they bump into each other at Davos. z
Kristofer is a practicing attorney, professional neutral, and writer on mediation and international law. He maintains a private practice in criminal and family law in upstate New York, while working toward his Masters in Dispute Resolution at Pepperdine School of Law in Malibu, California. Kristofer graduated from the B.C.L./LL.B combined program at the Law School of McGill University in Montreal, Canada. Read more articles by Kristofer Michaud at: www.adrtimes.com/articles/author/kristofermichaud
6 | ADR Times Perspectives
Handling Domestic Violence In New Ways For Families by Bill Eddy, LCSW, Esq.
The High Conflict Institute has developed a new method for handling high conflict family law cases, titled New Ways for Families™
More information is available at our website. The purpose of this article is to address how New Ways can be used in domestic violence cases to reduce the conflict between the parents, move both parents closer to getting needed help, provide useful parenting information, and serve as a partial assessment tool for the court in making future orders.
Domestic violence is an area of growing concern in family courts, as highlighted by the 2007 Wingspread Conference and Report sponsored by Association of Family and Conciliation Courts (AFCC) and National Council of Juvenile and Family Court Judges (NCJFCJ). Differentiating among at least four different types of domestic violence is recognized as very important, yet in reality the adversarial court process often clouds these issues more than clarifies them. Various assessment tools are being considered, and New Ways may be used as an additional partial assessment tool. Historically, family law professionals have not recognized the significance of domestic violence risks in some cases and have exaggerated concerns in others. In the process, some 8 | ADR Times Perspectives
partners and children have been seriously injured or killed, while other children have lost a meaningful relationship with one of their parents because of unnecessarily-restrictive parenting orders. New Ways may offer some assistance in addressing this problem, by providing non-judgmental, parallel counseling before the conflict escalates and before long-term decisions are made, while still making temporary protective orders.
The New Ways for Families method includes three basic steps:
STEP 1: INDIVIDUAL PARENT COUNSELING for both parents with separate confidential counselors using a structured skills-building workbook for six sessions usually over six weeks. STEP 2: PARENT-CHILD COUNSELING for each par-
ent with the child/ren with a joint non-confidential counselor using a structured conversation workbook for three sessions each spanning twelve weeks.
STEP 3: FAMILY (OR COURT) DECISION-MAKING
with the assistance of attorneys, a mediator, a collaborative team, or the court. The Parent-Child Counselor can testify, but does not write a report.
Focus
Problems in Domestic Violence Cases in Family Courts
Problems of safety: The top priority is always safety – for the victim and the children. This is often addressed by seeking and obtaining 100-yard temporary restraining orders, residence exclusion orders, and temporary no contact orders or supervised visitation between the perpetrator and the children. Yet victims often receive no counseling and tend to underestimate the risk of injury despite the restraining orders (no paper ever stopped a bullet), including initiating contact with the perpetrator. Victims often change their minds and they do not return to court to obtain a permanent restraining order in many (perhaps a majority) of cases. Likewise, the perpetrator often gets no counseling at this early point in the legal process and may attempt to stalk the victim or pressure the victim to reconcile. The time of separation is the highest risk for violence, yet there is no structure for focusing the intense emotions each party is feeling. Temporary restrictive parenting orders often get continued as the legal process inches forward, especially when custody evaluations are ordered. Children may go weeks before seeing one parent and, in some cases, may reside solely with a parent who has a mental health problem and/or has made exaggerated or false claims.
Problems differentiating types of domestic violence: Following the Wingspread Conference, four very different types of domestic violence have been analyzed and different legal responses have been determined appropriate for each: • Coercive Controlling Violence
“battering,” risk of serious injuries, pattern of control and fear;
• Situational Couple Violence
mutual violence, few injuries, no pattern of control and fear;
• Separation-Instigated Violence
1-2 incidents at separation, no history of violence; and
• Violent Resistance
by a victim to stop the violence, but higher risk of getting injured.
Yet distinguishing among these four types is not easy, as they often look the same on the surface. A slap on the face could have occurred in any of the above types. It could be the warning sign of intense intimidation that reinforces past years of fear and a serious threat for future violence for a victim of Coercive Controlling Violence. If you underestimate this risk, a victim could get seriously hurt or become isolated and severely depressed. Or it may have been a single occurrence, or both parties may have equally engaged in aggressive behavior. If you overestimate this problem, then orders severely restricting parent
February 2012 | 9
contact with children may start a downward spiral of one parent giving up or a child becoming alienated against that restricted parent.
Problems with the adversarial process of assessment: Types and severity of domestic violence are difficult to assess even in the absence of litigation. But in the adversarial process, emotions often run so high that serious abuse is excused or ignored, or that isolated incidents are exaggerated. To be safe, courts often make orders based on the worst case scenario. This can reinforce false or exaggerated claims. On the other hand, after seeing several emotionally-exaggerated cases, some legal professionals have developed a presumption that domestic violence reports are strategic tactics in separation or divorce litigation and therefore all lack merit. Decisions are made at highly emotional hearings, where perpetrators can be very controlled and look good, while victims risk being seen as overly dramatic and lacking credibility. Often attorneys present opposing arguments with great intensity, when they actually have little meaningful information.
In the adversarial process, parents become rigid in their positions and become closed to any change in their own future behavior. Perpetrators feel driven to put all of their energy into defending or denying their prior abusive behavior. The price of being found guilty of domestic violence in family law cases is very high: loss of meaningful contact with children, increased financial obligations (in California spousal support can be affected by a history of domestic violence), and possible loss of liberty (going to jail).
a loss of self-esteem and fear of criticism from professionals for making bad decisions regardless of what she (or he) does. Many experienced domestic violence professionals understand that victim education is an important part of ending the cycle.
How New Ways Can Address These Problems
New Ways for Families is partially designed to address these problems, as follows:
Ordering New Ways: When the court first orders New Ways, temporary orders can be made (TROs, restricted parenting, etc.), at the same time as both parents are ordered into the counseling of New Ways. The judge can keep the conflict from escalating by stating that he or she makes no assumptions about which parent is accurate in describing their dispute and about how serious the abuse is, or if there is abuse at all. All of this will be determined by the court in the last step of New Ways, after the counseling steps. This helps keep both parents from focusing on defending a position, and instead on following the court’s orders for the short-term, structured counseling.
Step 1: Individual Parent Counseling
As each party will meet with their own confidential counselor for six sessions (usually over six weeks), this is a safe setting for victims to address the reality of their situation Victims and their advocates are appropriately strong in put- without having to be blamed for the abuse. They can gain ting forward the position that they have not “caused” the strength from their individual counselor, as well as education and strategies for self-protection. Over six weeks, Differentiating among at least four different types of domestic violence is recogvictims may develop the confidence to nized as very important, yet in reality the adversarial court process often clouds explain the abuse more clearly to the these issues more than clarifies them. Various assessment tools are being concourt, and also may gain more confisidered, and New Ways may be used as an additional partial assessment tool. dence to separate (and stay separated) from their abuser. All of this is without any contact necessary with the perpeabuse they have experienced. They need to be strong, be- trator. In cases of distorted claims of abuse, the counselor cause professionals have traditionally blamed them as part can educate the client about the dynamics of abuse, the risks of the problem. To suggest that a victim go into counseling of misleading allegations, and available treatments for the could be seen as punishing the victim, and may be seen by client’s possible mental health problems. Long-term decithe court or the other side as admitting to some responsibil- sions are delayed while this counseling is occurring, so that ity for being abused. However, this is tragic, because victims they do not have to meet together in parenting mediation or can benefit so much from counseling to prevent being a vic- at court. Yet it is also time-limited, so that the client knows tim in the future. the counseling is not open-ended and that work needs to be Victims are often in extreme distress and their own denial, done with the time available. However, clients can extend and they often return to their greatest source of past reassur- the counseling by request, so that if a good relationship is ance – ironically, the perpetrator. This is a highly-reinforcing established with the counselor there can be ongoing support, cycle of intimacy and anger, especially as the victim feels even if it is in less frequent sessions.
10 | ADR Times Perspectives
For perpetrators, or alleged perpetrators, the individual counseling is an opportunity for reality-testing and focusing on his (or her) own behavior. The counselor can educate this party on the options and potential consequences of past and future violent behavior. Yet at the same time, the counselor can give the client some hope for changing future behavior, by beginning to learn the three basic skills of New Ways (flexible thinking, managed emotions, and moderate behaviors), and applying them to possible parenting situations. This is not the end in most cases, but the beginning of accepting other treatments for domestic violence, including batterer’s treatment (in cases of Coercive Controlling Violence) or anger management (in cases of Situational Couple Violence or Separation-Instigated Violence). Ideally, such clients will be more willing to stipulate to ongoing restraining orders and a batterers treatment program or other future treatment, after discussing it in the supportive setting of confidential counseling, rather than the confrontational public setting of courtroom litigation.
Step 2: Parent-Child Counseling The second step of New Ways for Families is three highly-structured sessions for each parent alone with the child/ ren, alternating weeks with the other parent, using the same Parent-Child Counselor. No contact between the parents is necessary, although in some cases they may agree to meet together in the final session to discuss new family arrangements, schedules, communication methods, and decisionmaking. Such a joint final meeting could productively occur in cases of Situational Couple Violence or Separation-Instigated Violence, but would not be advised for cases of Coercive Controlling Violence. In many domestic violence cases, the parents are going to have a Parallel Parenting arrangement, such that they do not have direct contact at exchanges (which would be done at school by each parent separately, etc.), they have highly limited communication (such as one email maximum on childonly issues a day), and they have few (if any) decisions to make jointly. In such an arrangement, each parent can have significant time with the children, based on his or her own parenting skills. The Parent-Child Counseling can realistically prepare the parents and children for this new way of parenting.
In the Parent-Child Counseling, the counselor can observe each parent’s ability to communicate supportively with their children and observe each parent’s openness to changing their communication patterns. The counselor can also observe the child’s level of comfort with each parent, and whether a child appears to have been coached or intimidated by either parent. By seeing each parent with the children in
alternating weeks, the counselor can observe the contrasts in each parents’ overall capability.
Ideally, after Step 1 of New Ways, the parents in domestic violence families will be more able to make their own realistic decisions out of court by agreement, with the help of professionals, such as negotiating attorneys, a court mediator, etc. This would include stipulating to ongoing restraining orders, possible future counseling orders, parenting classes, and Parallel Parenting orders – including any possible restrictions for one parent (supervised, limited time, etc.). If possible, this could be done between the second and third sessions of Parent-Child Counseling, so that each parent could explain to the children the “new ways” of their family in the third session. This provides stability, possible respect for each other, acceptance of new arrangements, and a possible end to the litigation. Depending on state requirements and court preferences, the parents would return to court to have their agreements approved or they could simply be filed with the court.
Focus
Step 3: Family (Or Court) Decision-Making As described at the end of Step 2, it is possible that the parents will have reached some or all agreements regarding parenting by the end of the Individual and the Parent-Child Counseling. However, in many domestic violence cases, this will be unlikely. Therefore, they will go to court to argue their concerns and the court will make their decisions for them. This will occur somewhat differently in New Ways cases.
At the beginning of a full hearing on parenting issues (and possibly restraining orders and batterers’ treatment orders, etc.), the judge will ask the parents what they have learned in their counseling sessions. This puts the emphasis learning skills for future behavior, rather than on defending past behavior.
Then, the judge will quiz each parent about a future parenting scenario similar to one described in the other parent’s declaration about parenting concerns (see explanation of Behavioral Declarations in the New Ways description available at http://highconflictinstitute.com/new-ways-for-families/ new-ways-for-families-parent-information). This puts the burden on each parent to convince the court that he or she would respond in an appropriate manner with the child/ren in the future, rather than focusing exclusively on past behavior.
February 2012 | 11
Then, the judge could give the parties a tentative decision and encourage them to negotiate around it in the hallway with the assistance of their attorneys (if any), another professional or neutral family members.
Then, and only then, if they were unable to reach agreement on all issues (including parenting schedule, communication, future decision-making method, restraining orders, future batterers treatment or other treatment, parenting classes, etc.), they would proceed with an adversarial hearing or trial, with testimony and other evidence about past behavior. Also, at such a hearing, the court could call the Parent-Child Counselor to testify about what he or she observed between each parent and the children. The emphasis would be on specific questions that the court had about each parent’s parenting skills, rather than on defending a Report, as the Parent-Child Counselor would not prepare a written report. This avoids shifting the focus to the “attack-defend” cycle that commonly occurs in high conflict families around written reports.
Then, while the court will make findings about past behavior and orders which may restrict one parent, the court can emphasize areas of progress and the value of future treatment for one or both parents. The overall tone and focus of this Step 3 is future behavior change, rather than future relitigation of the court’s decisions.
this approach has not yet been tested on a significant sample and should be tried with caution by experienced professionals familiar with domestic violence cases and legal options.
Ideally, by putting structured counseling before decisionmaking, New Ways gives these families a chance to change, while also observing their ability to change. When in doubt, the court can order custody evaluations or psychological evaluations after the initial New Ways steps have helped contain the conflict and taught some basic skills.For some families, with Situational Couple Violence or SeparationInstigated Violence, this process may get them back on track for mostly positive parenting where there is a low risk for future violence. For other families, with Coercive Controlling Violence (and Violent Resistance in some cases), this approach may reduce the risks of direct parenting conflict and assist both parents in complying with restraining orders, treatment orders, and parenting restrictions. z Let us know what you think about this new approach and, if you try it, let us know how it worked for you. Republished with permission from Bill Eddy © 2008 High Conflict Institute. Also available at http://www.highconflictinstitute.com/articles/new-ways-forfamilies-articles/78-hci-articles/published-articles/113-handling-domesticviolence-in-new-ways-for-families
Conclusion
New Ways for Families is a very new approach to high conflict litigation, which appears likely to be helpful in handling domestic violence cases as well as other cases. However,
Bill Eddy
Bill Eddy, President of High Conflict Institute provides training and consultations regarding High Conflict People (HCPs) to individuals and professionals dealing with legal, workplace, educational, and healthcare disputes. Bill Eddy is the President of the High Conflict Institute and the author of “It’s All Your Fault!” He is an attorney, mediator, and therapist. Bill has presented seminars to attorneys, judges, mediators, ombudspersons, human resource professionals, employee assistance professionals, managers, and administrators in 25 states, several provinces in Canada, France, and Australia. For more information about High Conflict Institute, our seminars and consultations, or Bill Eddy and his books go to: www.HighConflictInstitute.com or call 619-221-9108. More information about the New Ways for Families program is available at www.neways4families.com. Read more articles by Bill Eddy at: www.adrtimes.com/articles/author/billeddy
12 | ADR Times Perspectives
Dealing With the Pains of Divorce Through Meaningful & Complete Apology by Dina Haddad, Esq., LL.M. If you are contemplating divorce, in the midst of a divorce, or already have a divorce decree in hand, you know pressures of the legal process do not compare to the emotional turmoil you are experiencing. The emotional pressures can be quelled when you give a meaningful and complete apology. It has the effect of freeing you from the weight of the divorce, help heal you and the person you offended, restore your relationships, and even provide you direct legal benefits to your case.
Apologies: The Need to Give and Receive
During the divorce, you process a variety of thoughts and emotions in an attempt to understand what led to the dissolution of your marriage. You conclude that some of these failures were your spouse’s fault and others were yours. Many were a result of both you and your ex-spouse. You may struggle with the shame and guilt you experience for the affair you had or the misuse of your family’s money. You may feel guilty that your marriage failed. You may have even come to terms that this guilt is not going to disappear when the divorce process is over. You are haunted by the thought of having ongoing contact with your ex-spouse and you cannot imagine coparenting for the next ten years in any healthy way or being at your children’s celebrations with your ex-spouse in the years to come.1 Internal factors, such as shame, guilt or empathy, may motivate a person to apologize as well as external factors, such as restoring a damaged relationship.
These are heavy and weighty issues many divorcees feel. A meaningful and complete apology, however, has the power to heal, relieve you of the humiliations and grudges, and help you establish a more healthy future relationship with your exspouse.2 An apology can take you from desiring revenge to a place of acceptance. It has the power to make your situation better and reduce the anger and resentment your ex-spouse has towards you and you have against your ex-spouse. But even for what is undoubtedly our own fault, most of us find it very hard to apologize. It is hard to admit we were wrong to anyone, especially to an ex-spouse. We worry that if we did apologize, we would feel weak and our spouse would feel superior to us.3 In fact, there is no guarantee that once we put ourselves at the mercy of our spouse that we will be forgiven. If our spouse does not forgive us, would it only result in injury to our pride and self-esteem? The Apology Risk
Apologies are not easy, but the benefits likely outweigh the risks and your fears. And without an apology, you are likely to face additional short-term and long-term consequences. As you are probably aware, the divorce process can be very nasty. Spouses are pitted against each other to fight for important issues such as time with their children, ownership of the family home, and division of the family estate. An insulted spouse may be too hurt to discuss settlement options and may express his/her anger through litigious tactics. Even in mediation, an insulted spouse would find it difficult to trust the other spouse enough to reach a mediated settlement or forgo tit-for-tat strategies. An apology, however, can prevent this antagonistic behavior4 and heal the damaged relationship between you and your
spouse. Apologies heal because they satisfy at least one and sometimes several - distinct psychological needs of the offended party. Those needs are: restoration of self-respect and dignity, assurance that you and your ex-spouse still have shared values, and your ex-spouse’s assurance that the offense you are apologizing for was not his or her fault.5 For example, an apology that you are sorry you mismanaged the finances and did not save enough money as your spouse requested for the children’s college fund demonstrates that you understand the value of your children’s education – a value both you and your wife share.
Focus
The apology process also allows you and your ex-spouse to keep the past in the past, and create a relationship based on the present circumstances, absent hate and revenge. This gives you an opportunity to deal with your ex-spouse on a more level playing field. Otherwise, the insult from the injury and the indignity your ex-spouse is experiencing can be a large barrier to compromise. It will affect you when you try to settle your case. It will have an emotional weight on you personally. And it will hamper your on-going relationship with your ex-spouse, particularly if you and your ex-spouse have children to raise together.6 On the other hand, a meaningful and complete apology has the power to keep your ex-spouse from being unreasonable in mediation and settlement discussions and using the courtroom to punish you. It will give you a healthier and redefined relationship for the future. How to Apologize
The manner in which you apologize is crucial to the success of your apology. I am sure we each can recall countless examples of apologies that just did not work. For example, we have had our spouse, friend, or family member apologize half-heartedly. Other times, we have received an apology so vague it was not clear if the person was in fact apologizing. We have also been recipients of conditional apologies, in which the offender says something to the effect: “I’m sorry if I hurt you,” leaving us questioning whether the offender even believed she or he had actually hurt us or done something wrong. Other times, the offender does not even admit to his or her personal fault when apologizing. For example, the offender may say, “Mistakes were made,” rather than “I made a mistake.”7 We know from experience that these apologies do not work because they leave us wondering whether the offender really understood what was done wrong, whether the offender would never do the same wrong again, and whether the offender was really sorry.
February 2012 | 15
A Successful Apology
If you plan on apologizing to your ex-spouse, and you are going to put the work and effort to apologize, you want to make sure that your apology is going to be successful. A successful apology can be divided into four parts: 1) The apology acknowledges the offense.
2) The apology communicates remorse and the related attitudes of forbearance, sincerity and honesty. 3) The apology provides an explanation; and 4) The apology grants reparations.8 1) Acknowledge the Offense
It is crucial that you acknowledge your offense to your ex-spouse in adequate detail. If you are apologizing for an affair, you need to identify the affair. For example, “Jennifer, I’m sorry that I cheated on you during our marriage.” You do not need to go into the details, such as the activities you did with him or her. Details will likely only cause more hurt. Let’s use another example, what if the offense was mismanaging community assets. Acknowledging the offense might look like this: “Sam, I’m sorry for mismanaging the Fidelity account and using those savings for my gambling habit.”
You also want to make sure you apologize to the people you hurt. You cannot just be sorry and not apologize to the individual you hurt. If you do not apologize to the person you hurt, the offended does not receive any benefit, and you will receive little back, especially the chance of forgiveness. It also makes no sense to apologize to the wrong person or only to one of the many individuals needing to hear the apology. You should take some time to identify who has been hurt by your wrong. It might not be only your ex-spouse; your children or another family member might also need an apology. If you
16 | ADR Times Perspectives
do need to apologize to your children, make sure you are sensitive to your children’s age and present the information in an age appropriate manner.
In addition, your apology should acknowledge the impact these behaviors have had on the people you hurt and that your behavior violated the values you had established with them. Continuing our example of an affair, this part of the apology might sound like, “I know that my affair has hurt you and caused you not to trust me, or the sanctity of our marriage. I know my affair was a violation of our marriage vows.” Using our mismanager of the finances example, it might be stated as: “I know that mismanaging our savings has left us and our children with no savings and made it more difficult for us to pay for their schooling. I violated our agreement to save this money for our children.”9 2) Communicate Remorse, Sincerity, and Honesty
Another element to a successful apology is that the apology must be sincere and genuine. When you are giving your apology, be conscious of your body language and tone. Are you looking directly at your ex-spouse when you give this apology? Is your tone soft with feeling or terse and sarcastic? Are your arms folded or on your lap? Your body language and tone will impact how your ex-spouse receives your apology. If you are not sincere, it is unlikely you will be relieved of the shame and guilt you are experiencing and your ex-spouse is unlikely to believe your apology. Take the time to practice your tone and the body language you will use to deliver your apology.
3) An Explanation
Without an explanation, apologies tend to be incomplete. Consider preparing an explanation for why you did what you did. Again, honesty and sincerity are crucial. Your explanation will put the offense into perspective for both you and your spouse. This helps with the healing process. It may help you give your ex-spouse the explanation he or
she was looking for and help him or her stop continually reminding you of this wrong or using this to justify his or her harsh litigation tactics or desire for “more” than his or her fair share. An explanation helps bring closure to the wrong and allows you both to move on. 4) Grant Reparations
The final part of a successful apology is determining whether you need to offer your ex-spouse some form of reparations to restore the loss you caused. Be careful. You are not offering to restore a loss because you are guilty. This restoration is an attempt to demonstrate to your ex-spouse that you take the grievance you caused seriously. Consider reparations if you were at fault for misusing the family’s monies, damaging the personal effects of your ex-spouse, or taking valuable possessions or even family photos from the family residence before you and your ex-spouse had a fair chance to divide them. You might refund the lost money or allow your spouse to take back certain items you previously took. Reparations may not be available in situations like verbal abuse or communication failure. If your situation does call for reparations, plan ahead what reparations you will offer and present it as an offering to amend your wrong in a tangible way. Where and When to Apologize
Now that you are familiar with the benefits and process, consider scenarios in which you can apologize to your spouse. A mediation setting is ideal for an apology. You can benefit from the more relaxed and cooperative setting in mediation than in the courtroom. Or you might use a more private setting such as a coffee shop. You might arrange this with your ex-spouse in advance. Your attorney may also have other ideas and be able to help facilitate this conversation with your ex-spouse’s attorney.
Dina Haddad
Take Home Message
Apologies have the power to provide you a healthy future as you move into a new chapter of your life. The process requires a degree of risk, but can relieve you of the guilt, pain, and suffering you have experienced and may continue to feel in the next days, weeks, and even years ahead. As you contemplate whether you will apologize and the manner and content of that apology, consider the degree of release and freedom an apology with your ex-spouse would bring. You have a right to experience that freedom again. z
Focus
1 AARON LAZARE, ON APOLOGY 145 (Oxford University Press, Inc., 2004). Internal factors, such as shame, guilt or empathy, may motivate a person to apologize as well as external factors, such as restoring a damaged relationship. 2 Id. at 1. 3 Id. at 160. 4 Jonathan R. Cohen, Advising Client to Apologize, 72 S. CAL. L. REV. 1009, 1015-1022 (1999). 5 LAZARE, supra note 1, at 44-45. 6 Cohen, supra note 4, at 115-22. 7 LAZARE, supra note 1, at 85-104. 8 See generally LAZARE, supra note 1, at 107. 9 See generally LAZARE, supra note 1, at 75.
Dina Haddad is a family law attorney, panel mediator at the Agency for Dispute Resolution and principal of Families First Mediation. She is a Judge Pro Tempore for the Personal Property Arbitration in Santa Clara County. She received her LL.M. in Alternate Dispute Resolution from Straus Institute for Dispute Resolution at Pepperdine School of Law and a Juris Doctor from the University of California, Hastings College. Learn more at www.ffmediation.com Read more articles by Dina Haddad at: www.adrtimes.com/articles/author/dinahaddad
February 2012 | 17
Fairytales & Myths
Applying the Hero Story to Mediation by Jasper Ozbirn
Everybody wants to be a hero. Joseph Campbell’s seminal work The Hero with a Thousand Faces concluded many if not most cultures’ traditional stories, fairytales, and myths embody an element of “hero.” Campbell found these stories often follow a similar plot—the hero’s journey—where the hero arises from his or her mundane surroundings to experience something extraordinary before returning to their initial surroundings transformed in some way.
Outside the realm of story and fairytale, it is interesting to observe that people typically consider themselves the “hero” of the story they tell. This is what makes Hollywood so effective—everyone identifies with the hero. (As proof, ask yourself when the last time was you watched a movie and identified with the villain?) This desire to be the hero is expressed every day, and is easy to notice even in cell phone conversations at the market or mall. People complain about all the wrong another has done them, and elaborate on their many attempts to persevere. In short, they see themselves as the hero, challenged and tested by some villain.
The framework of the hero’s story, and our general desire to be the hero, is readily applicable to mediations of nearly any kind. Let us take a garden-variety family law issue— divorce—as an example. The basic story in many divorces is that the other side has done something wrong or failed to do something right, which has caused the relationship to fail. The mediator should expect that each side will attribute fault to the other and consider themselves the hero. Notably, this phenomenon that we tend to attribute our successes to our own hard work and our failures to some outside source is recognized in Psychology and known as “fundamental attribution error.” Quite simply, both sides believe they are right and the other is wrong.
Now, imagine these two individuals across from each other at a conference table. This, to me, conjures the tensest scene from any myth or fairytale where, at the pinnacle of the story, the hero meets the ultimate challenge—to overcome the dark side. At this point, the hero has only one choice—to prevail or to be prevailed upon. What is the likelihood the villain and hero are going to brew coffee and try to talk through their differences to reach a sensible written agreement in this context? Why is this? Why doesn’t the villain just give up? I mean, after all, he should recognize it is he the villain that is to be prevailed upon! Unlike plays and fairytales, in real life there are two hero stories: one for each side. This creates
an absolute conflict; neither party is going to simply cede and let the other be the hero because to do so would ruin their hero story and their perception of themselves.
This is where mediation provides the key to resolution— it permits each side’s hero story to play out as the party wishes, or at least within bounds that are acceptable. By separating the parties, the mediator allows each individual the opportunity to tell their particular “hero story.” Without the presence of the other party, the mediator is free to acknowledge without appearing partial all the first party has done, the strife they have overcome, and how the other side has done nothing but try to foil those efforts. The mediator can allow this party to explain his or her heroic acts and acknowledge them as the hero they present themselves to be.
Focus
Not surprisingly, when the mediator goes into the other caucus room, he or she can expect to again be bombarded with a story of heroism. Just as in the first room, the mediator can acknowledge this party, who was the villain in the first story, to be the hero in the second version of the story. There is little need to contradict, or to present the details of the first party’s story. Contradicting either party, or challenging either’s hero story, is likely to cause the challenged party to try harder to convince the mediator. Being stuck on the “who did what to whom” part of the parties’ stories, and allowing them to bicker over who is the hero, detracts from pursuing resolution. Thus, one of the great powers of mediation is that the mediator has the luxury of being able to accept all versions of the story as true and acknowledge each side’s heroic efforts. By accepting, instead of contradicting, each side’s hero story, the mediator enables a transition to meaningful discussions of how to return each hero to their mundane worlds, transformed by their hero’s journey. z
Jasper L. Ozbirn received a LL.M. in Dispute Resolution with an Emphasis in Mediation from the Straus Institute, Pepperdine University School of Law. He is presently an associate attorney with Citron & Citron in Santa Monica, California. Jasper Ozbirn
Read more articles by Jasper Ozbirn at: www.adrtimes.com/articles/author/jasperozbirn
February 2012 | 19
Successful Post-Dissolution Co-Parenting: The Mediator’s Role by Scott C. Van Soye People often think of divorce as the end of a relationship between spouses. In some cases, it may be. But the reality is that where there are minor children from the marriage, a relationship—though changed—endures until the youngest child reaches adulthood. Learning to deal with this new reality is a large part of a successful post-divorce life.
ing and maintaining relationships.[3] Children whose fathers have infrequent visitation do worse in school, have lower IQs, and exhibit more emotional and behavioral problems.[4] So while dealing with your ex-spouse may cause anger, sadness, frustration, or guilt, learning to co-parent is critically important. Using a family mediator can help to establish effective co-parenting proBoth California law and children’s well-being make cedures and reduce stress. contact and cooperation between parents necessary. Changing the relationship California’s public policy encourages both parents to participate in child-rearing after dissolution, and ex- While a relationship will continue, it is important to replicitly favors a child’s “frequent and continuing con- member that roles will change. During the period of tact” with both.[1] In determining custody, courts must the marriage, there is generally one cooperative family consider which parent is most likely to allow the child unit with defined roles. The dissolution of the marriage necessarily creates two independent units, and changes to see the noncustodial parent often.[2] the nature of the relationship. Neither parent will be There are strong practical reasons underlying this pub- able to count on the other to assume sole responsibillic policy. Children benefit from time with each parent, ity for any area – “Bob always handled discipline,” or and suffer from the lack of such time. Though there is “Sue always dealt with school issues” won’t apply if little data on the lack of maternal visitation, what there Bob and Sue divorce. Each will have to learn to cope is suggests that children in such families suffer anxi- with the whole scope of parenting. ety, depression, and sadness, and have difficulty form-
20 | ADR Times Perspectives
Focus
And since both parties will now have their own tasks and responsibilities, co-parenting must become a respectful negotiation between joint-venturers with their own interests and needs.[5] Two households mean two ways of doing things, two sets of “house rules.”[6] While this may cause some disruption, the fact of the matter is that unless a house rule is harmful to the minors involved, the court is unlikely to intervene. If one party asks the court to take a hand, by definition, the process will be time-consuming, expensive, and stressful.
to communicating whenever necessary about important child-rearing topics like health or education, even where the conversations are uncomfortable for you.[7] Disengage somewhat from how the other party chooses to do things. Remember that your ex-spouse is now entitled to parent in his or her own way. Although you may disagree on the details, you should accept that you can’t control everything in a household that isn’t yours. If you can’t agree, pick your battles. Let the small differences go and focus on what matters to the health, safety, and welfare of your children.[8] Remember that Communicating properly is the key you and the other parent may be working together for The divorce process can be full of conflict. Blame, years. There may come a time when you need a favor anger, jealousy, fear, long-running arguments – all of from your ex-spouse, or really want to resolve a disputthese are frequently present in the dissolution process. ed issue in your favor. Be flexible and restrained now or They can make it difficult to communicate well about you’ll surely be in trouble then.[9] even the most basic parenting issues. In order to move Parents shouldn’t vent their anger or criticisms about forward, parents must acknowledge that parenting well the divorce process or about their ex-spouse in front the is the highest priority, and set a business-like tone. children. It’s harmful to the kids.[10] In a business situaIt’s important to do the following: Approach the rela- tion, the parties would refrain from such venting. More tionship with your ex-spouse as a partnership, where importantly, acting that way is a sure way to alienate your goal is ensuring that your child thrives. Commit the co-parenting “partner.” February 2012 | 21
How a mediator can help in the co-parenting process
Ideally, mature adults committed to the co-parenting process will be able to cooperatively work through their disagreements toward the common goal of happy, welladjusted children. But no one is perfect, and everyone needs help working through problems from time to time. In contrast to individual negotiations or a judicial decision, family mediator can be an excellent way to resolve disagreements and has various advantages.
1. The parties maintain control of the process. Raising children is one of the most intensely individualized things a person can do. There’s no fool-proof method for raising children, but parents naturally have their own ideas and preferences. Once a court becomes involved, the judge will make a decision, and may run on tight deadlines. A “standard” way of doing things is likely to be applied. In a mediation, the parties have the freedom to do what they want on their own schedule, if they can agree.
2. The focus is on meeting needs. Courts base their decision-making on rights and precedent, not on goals and needs. There is usually a winner and a loser, and if a party needs something from the process that hasn’t been done before or to which he has no right, he probably won’t get it. In contrast, most mediators focus on the parties’ needs and goals. And because a successful mediation requires an agreement, each party generally gets something it needs. There’s rarely a complete “loser.” Further, the parties can agree to things the court might not order, like grandparent or third-party visitation.[11] 3. Emotions are not irrelevant. As noted, the dissolution process can be a very emotional and stressful one. [12] In general, the courts’ focus on rights and precedent
means that the parties’ emotions are simply ignored, even where they are the only thing preventing resolution.[13] In a mediation, by contrast, emotions are often a recognized barrier to resolution, and become central to the process. Additionally, the experienced mediator deals daily with strong emotion, and is familiar with techniques used to confront it, diffuse it, and refocus all involved on the central issues – here, the health and happiness of the parties’ children.
4. The mediator may serve as a resource to all. Of course, a bench officer may not pre-judge a case or speak about it to less than all parties (except as permitted during settlement efforts).[14] A mediator, by contrast, can be a sounding board for all concerned, can give educated opinions about what the court is likely to do, can realistically evaluate and discuss the parties’ alternatives to settlement, and can suggest solutions the parties did not think of, precisely because of his or her neutrality, experience in the system, and exposure to other alternatives.
5. Mediation is substantially less expensive than litigation. A 2011 estimate of divorce costs set them between $53,000 and $188,000.[15] Mediation, in contrast, could cost as little as $5,000 to $7,000. The drastic difference in cost leaves resources free – resources that might be used to deal with unresolved economic issues, or meet the needs of a child of the marriage, thereby shortening the process and decreasing stress. Using a focused co-parenting approach will likely reduce conflict because both parties are expressly working toward the same goal. When conflicts do arise, mediation offers substantial advantages to mediation, and should be used whenever possible. y
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ENDNOTES [1] California Family Code § 3020 (b). [2] Cal. Fam. Code § 3040 (a)(1). [3] Chambers, D.L., Rethinking the Substantive Rules for Custody Disputes in Divorce, 87 MICHIGAN L. REV. 477 (1984). [4] Maldonado, S., Beyond Economic Fatherhood: Encouraging Divorced Fathers to Parent, 153 U PA. L. REV 921, 950-951 (2005). [5] Nelson, L. I., and Blanco, P., 10 Commandments of Co-Parenting, MINNESOTA PARENT (1995) also available at http://coparenting101.org/ten-commandments-of-co-parenting/. [6] Id. [7] Block, J .and Smith, M., Tips for Divorced Parents: Co-parenting with Your Ex and Making Joint Custody Work also available at http://helpguide.org/mental/ coparenting_shared_parenting_divorce.html. [8] Stahl, Phillip M., Parallel Parenting IN PARENTING AFTER DIVORCE.
Focus
[9] See Block, supra, note 7. [10] Trustees of North Dakota State, Co-Parenting through Separation and Divorce: Children First (1996) also available at http://www.ag.ndsu.edu/pubs/yf/ famsci/fs565w.htm. [11] A caveat here is that the standard for custody and visitation is the “best interest of the child,” See CA Fam. Code §§ 3011, 3020, 3040. If the court were to determine that a mediated agreement, did not meet that test, the agreement would not be enforced. However, as discussed above, an experienced mediator would likely alert the parties to this issue before the close of mediation. [12] Divorce ranks second only to the death of a spouse as a stress-producing event. See Holmes & Rahe, The Social Readjustment Rating Scale, J. PSYCHOSOM. RES. 11, 213–8 (1967). [13] It is true that emotional and psychological health is relevant to the best interest of the child: Advocating for Comprehensive Assessments in Domestic Violence Cases, 46 FAM. CT. REV. 654 (2008). The point here, though, is that the psychological health of th parents was irrelevant except as it impacted the child. [14] California Canon of Judicial Ethics 3B(7). [15] Chiamp, C., The War of the Roses is So Yesterday, also available at http:// www.hclawyers.com/news/wp-content/uploads/2011/07/article.1-4-11.pdf.
Scott Van Soye
Scott Van Soye is a full-time mediator and arbitrator working with the Agency for Dispute Resolution with offices in Irvine, Beverly Hills and nationwide. He is a member of the California Bar, and practiced real estate, civil rights, and employment law for over twenty years. He holds an LL.M. in Dispute Resolution from Pepperdine University, where he is an adjunct professor of law. He welcomes your inquiries, and can be reached at scott.vansoye@agencydr.com or (800) 616-1202, Ext. 721. Website: www.scottvansoye.agencydr.com Read more articles by Scott Van Soye at: www.adrtimes.com/articles/author/scottvansoye
February 2012 | 23
DISCOVER
EVENT
Divorce Mediation Institute: Moving Beyond the Basics Featuring Nina Meirding & Bob O’Connor Fri, May 18 - Sun, May 20, 2012 at 12:30p (ET) At the historic Biltmore Estates in Asheville, NC For event and ticket information, visit: www.instituteforconflictresolution.eventbrite.com
The “Divorce Mediation Institute: Moving Beyond the Basics” conference is specifically designed for lawyer and non-lawyer mediators, other ADR professionals, therapists, social workers, educators, trainers, retired judges, and lawyers who are not mediators but who collaborate with them.
This event is hosted by the Institute for Conflict Resolution. Founded by Bob O’Connor, the Institute for Conflict Resolution provides world-class education and training to ADR Professionals and Non-ADR Professions involving conflict resolution, post-conflict restoration, corporate wellness, and conflict prevention. O’Conner founded the Institute for Conflict Resolution “to respond to the need in this region for a premiere education and training organization.”
Nina Meirding
The event will feature premiere national and international divorce mediation trainer, Nina Meierding, MS/JD. Nina Meierding conducts trainings around the world and works with various groups including court systems, corporations, medical agencies, governmental agencies, small and large business entities, and individuals in the areas of conflict resolution, cross cultural issues, management skills, and negotiation skills. She has assisted in the resolution of thousands of disputes. From 1985 to 2007, Nina served as the director at the Mediation Center in Ventura where she handled more than 4,000 disputes. She also serves as a mediator for the California Department of Education special education mediation program and serves as a consultant for the Wisconsin Special Education Mediation System. Meierding is also an adjunct professor and guest lecturer at various educational institutions including Pepperdine University School of Law, Southern Methodist University’s Dispute Resolution Program, SMU’s Counseling Program, and Lipscomb University. She teaches courses on topics relating to negotiation, mediation, domestic relations, family law mediation, divorce mediation, counseling diverse communities, and cross-cultural issues.
Bob O’Connor
The event will also feature alternative dispute resolution practitioner and trainer, Bob O’Connor. O’Connor has the British Equivalent to a Juris Doctorate as well as a Master of Divinity and a LLM in Dispute Resolution from the Straus Institute at Pepperdine University School of Law. In addition to serving as a minister, counselor, and teacher for the past 17 years, Bob O’Connor has mediated hundreds of disputes in the past three decades involving families in crisis. In addition to his active private mediation practice at Conflict Resolution Specialists, he serves as a certified court mediator. O’Connor is presenting working on the publication of a book for mediators on Marital Separation Agreements.
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EVENT
New Ways for Families Featuring Bill Eddy from High Conflict Institute Fri & Sat, March 23-24, 2012 / 9:00a-4:30p (PT) Mission Viejo Country Club 26200 Country Club Dr., Mission Viejo, CA 92691 For event and ticket information, visit: www.mediatewest.com/events
The “New Ways for Families” seminar provides advanced skills for any professional who works with families facing conflict, whether its divorce, abuse, or big changes. This two-day training is designed for therapists, lawyers, judges, and mediators who want to receive a certificate in the New Ways method. However, any professional can attend and learn and practice skills for assisting high-conflict parents and their children. The emphasis of the method is to teach parents simple methods for practicing three big skills when faced with decisions or problems: flexible thinking, managed emotions, and moderate behaviors. High Conflict Institute was co-founded by Bill Eddy, LCSW, Esq., and Megan L. Hunter, MBA, to provide education and resources to professionals handling High Conflict disputes, and to anyone involved in relationships of any kind with people who have High Conflict Personalities. To learn more about New Ways for Families (or to order the poster shown at the right), visit: www.NewWays4Families.com
Bill Eddy
Bill Eddy is the President of High Conflict Institute and the author of “It’s All Your Fault!” He is an attorney, mediator, and therapist. He will discuss the New Way method. New Ways for Families™ is a structured parenting skills method with short-term counseling to reduce the impact of conflict on the children in potentially high-conflict cases. It can be used whenever a parent or the court believes one parent needs restricted parenting (supervised, no contact, limited time), at the start of a case or any time a parent requests restricted parenting – including post-judgment litigation. This method emphasizes strengthening skills for positive future behavior (new ways), rather than focusing on past negative behavior – while still acknowledging it. It is designed to save courts time, to save parents money, and to protect children as their families re-organize in new ways after a separation or divorce, for married or never-married parents. This method can be used in family court, mediation, collaborative divorce, or even post-divorce with the assistance of a Parenting Coordinator or High Conflict Case Manager.
February 2012 | 25
On the Edge
Responsibility, Self-Worth & Communication: The Keys to a Healthy Relationship by Kanoe Yim Wheeler
When I married my husband, Shiva, we chose to write our wedding vows. It was important to us that our vows express the foundation upon which we had already created a healthy, conscious, co-committed, and loving relationship. Eight years later, our vows are more deeply rooted as integral aspects of our partnership. “I promise to love you without reservation, when life is easy and when it seems hard, when our love is simple and when it seems to be an effort. I promise to give you the benefit of the doubt and when we disagree, I will presume that I misunderstood you.” For Shiva and me, the operative word in this vow is “seems,” because it reflects our belief that personal responsibility is an essential, non-negotiable aspect of relationship. We are clear that we are each responsible for our individual life experiences. Since, outer experience is a reflection of inner reality, if inside of me I’m feeling anger, happiness, frustration or love then I am creating angry, happy, frustrating or loving experiences. If I am creating my experiences, then Shiva (or anyone else for that matter), can neither be the cause of the experience nor its cure. Because I am the architect of my
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life experience, it is a disservice to me, Shiva and our relationship to blame him for my anger or credit him for my joy. This awareness and practice liberates me, because I extract myself from the victim role and stand fully in my power to create.
“Today, I reaffirm these promises that we already share and I rejoice in our love and commitment to each other.” Shiva and I are, and have been, committed to personal growth and supporting each other’s journey towards wholeness. I have often heard conversations in which couples expressed that their relationship changed once they were married. Though I have not been married before, I can see how this could have happened based on my previous relationships. In the past, I pretended to be the perfect girlfriend, pretended that things an ex-boyfriend said didn’t hurt me, pretended that I was willing to accept less than I deserved in a relationship because “he meant well” . . . I pretended until it was too exhausting to pretend anymore. And this was when the relationship would inevitably crumble. Unconsciously, I was afraid of being abandoned because of an irrational belief that I was not worthy of having
amazing love in my life. With a lot of personal reflection and commitment to transformational work, I entered into my partnership with Shiva anchored in the fullness of my self-worth. Because I was rooted in my self-worth, I was free to be me. I did not need to pretend like I did in other relationships. I now understand that I am whole and complete by myself and do not need anyone to make me feel complete, beautiful, or worthy. I do not need Shiva in my life, I choose him in every moment. Likewise, Shiva doesn’t need me in his life; he chooses to be with me. My experience has taught me that “need” operates from lack, whereas “choice” is empowering.
“Thank you for sharing your life with me and honoring and supporting my personal commitment to live life authentically and to be completely selfexpressed.” Living life authentically and completely self-expressed means that we are committed to speaking the truth in every moment. It means being transparent and not hiding any emotions, no matter how challenging the subject matter. I recognize how in past relationships, I swallowed things that I wanted to say, too afraid to upset my partner. As a result, I isolated a part of
myself from the relationship. At times, I would quietly stew over something “he did”. And when my partner would ask, “What’s the matter?” My response would be, “Nothing.” This response essentially punished him for the pain I was feeling and assumed that he should know what he did wrong. I can now see that I was simply angry at myself for not having the courage to use my voice. Now I understand that I am responsible for how I feel and what I experience. I know that those around me don’t cause my feelings of frustration; instead, these are my own issues that I must unravel. When I express that I am “upset” because of the way another person’s actions triggered me in a certain way, it allows me to take responsibility for the upset, work towards healing, and move beyond it. I choose healthy relationships. It is my commitment to accept responsibility for my choices, to allow myself to be vulnerable and to express myself authentically in every moment that allows not just my marriage, but all of my relationships to expand. z
Kanoe Yim Wheeler is a Relationship
Manager with the Agency for Dispute Resolution. She has over 20 years of management experience in the legal field. Her most recent position was as the Executive Director with Kabateck Brown Kellner, LLP. Prior to that, she was the Administrative Manager at Skadden, Arps, Slate Meagher & Flom, LLP’s Los Angeles office. There Kanoe served as one of the key players on the Management Team and supervised the LA office’s largest support staff department consisting of over 60 secretaries. Before moving to Skadden, Kanoe was the Office Manager at the Law Offices of Richard A. Lovich, staff counsel for Infinity Insurance. Her prior experience also includes working for Younesi & Yoss, LLP, Hunt, Ortmann, Palffy & Rossell, Inc. and sole practitioner Stephen D. Sawyer.
Have an article, story, comment, or topic suggestion you would like to share with ADR Times? Email editor@adrtimes.com or contribute online at: www.adrtimes.com/contribute
Kanoe’s ability to provide solutions and methodologies to address organizational needs led her to understand the vital role each person plays in the success of an organization and further inspired her commitment to empower others to achieve their potential. Kanoe is trained in alternative dispute resolution through the Los Angeles County Bar Association. In addition, her leadership training includes, The Landmark Forum Education and The Advanced Course, Pacific Institute’s Imagine 21 Curriculum and Self I-dentity through Ho’oponopono. Kanoe is currently pursuing a Master’s Degree in Spiritual Psychology from the University of Santa Monica. www.AgencyforDisputeResolution.com
February 2012 | 27
Commentary
Orchestrating Settlement A Symphony of Sound & Color by Mikita Weaver
This fall I attended one of the outdoor concerts by the Los Angeles Philharmonic Symphony at the Hollywood Bowl. It was a spectacular affair—beginning with the wonderful sounds of classical music and ending with a fantastic light show. The concert featured a local university marching band as well as a guest appearance from a world renowned cellist. As I listened to the symphony perform various movements, I carefully observed the conductor. Each movement by the conductor was precisely timed. Every direction to various sections of the symphony had to be meticulously arranged to ensure that every note was played exactly on cue. And yet, at the end of the magnificent concert and beautiful light show, the smoke from the fireworks wafted through the air—leaving the audience sitting in a cloudy haze.
In many ways, litigation is like a symphony. There are many “movements” or phases of litigation: the initial decision to file a lawsuit, pre-trial pleadings and motion, seemingly endless discovery, settlement negotiations, trial preparation, trial, post-trial motions, and possible appeals. Through the course of litigation, there may be the occasional “solo” when a defendant moves for summary judgment or when a plaintiff seeks review by an appellate court on a decision the lower court issued prior to a final judgment. There may also be times of prolonged “silence” as may be the case when a judge issues a stay of proceedings. Throughout the course of litigation, there are various moving pieces that must be organized and coordinated so that everything falls into place. And after years of litigation, sometimes the parties find themselves in a cloudy haze with their needs unmet and desires unsatisfied.
The attorney listens carefully to the client’s story in order to clearly Often parties find the process of litigation unfulfilling. Whether determine the set of facts. The attorney the parties go to trial or reach a settlement has a lot to do with the researches the relevant law and selects “conductor” or the decision-makers. the appropriate arguments and defenses to raise. The attorney preps the client for depositions and for various proceedings. Attorneys also help their clients navigate the WHO IS THE CONDUCTOR IN LITIGATION? legal system. Offering advice and providing various options, I think there are many viable answers to this question. the attorney guides the client through the decision making processes. It is the attorney’s role to present the client with The Judge? the likely success or failure of each path. The judge in many ways dictates the course of the litigation. In compliance with various code sections and local rules, An attorney also plays a pivotal role in presenting a client with the judge sets deadlines and determines when hearings and settlement options. The attorney’s knowledge of mediation trials will be set. The judge can order mediation or other and other settlement mechanism is therefore vital to whether proceedings to encourage settlement. If resolution is not or not settlement is reached. An attorney’s proclivity towards reached, the judge will ultimately oversee a trial. A judge using the mediation process as a vehicle for settlement will ultimately impact whether a mediation is successful. An or a jury will then decide the final outcome of the hearing. attorney can tell an uninformed client about the mediation The Client? process and inform the client of its many benefits. An The client is inevitably a driving force in litigation. If the attorney can prep the client for the session and encourage the client is the plaintiff, then he or she has chosen to use litigation client to participate fully and wholeheartedly—maximizing as a means to resolve the dispute. Although the attorney may the likelihood of reaching resolution. offer litigation strategy and advice, it is ultimately the client’s ***** choice to decide whether or not to settle. As an attorney, I see the litigation process through the The Attorney? eyes of a Lawyer. But, it seems to me that in orchestrating Attorneys play a large role in the litigation “symphony.” The settlement, an attorney plays the role of conductor. Although attorney must coordinate each step in each phase of litigation it is ultimately the client’s voice that is heard, the attorney making sure to meet discovery cut-off dates, attending status gives the client the instruments and tools and guides the conferences, filing motions for summary adjudication, and client in how to use those instruments. z crafting a plan for trial.
Mikita Weaver
Mikita Weaver is the Editor-in-Chief of ADR Times, a premier online dispute resolution community. As an associate at Northrup Schlueter APLC, she focuses predominantly on litigation and arbitration in the field of construction insurance defense. She received her Juris Doctorate at Pepperdine University School of Law and received a Masters in Dispute Resolution from the Straus Institute. Mikita has been published on the Pepperdine Dispute Resolution Law Journal and worked at the Centre for Effective Dispute Resolution in London. As an avid traveler, she continues to explore various dispute resolution issues and how they vary from region to region. She graduated magna cum laude from Berea College with a philosophy degree and her favorite things include yoga, cooking, photography, and singing with the Legal Voices of Los Angeles and Lawyer’s Philharmonic. Meet Mikita— www.adrtimes.com/editor-in-chief
30 | ADR Times Perspectives
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