During the weekend of October 24-26, I attended the annual conference of the International Academy of Collaborative Professionals (IACP) in Vancouver. I was fortunate to be accepted as a speaker and received a gift which upon returning home, I opened to find a talking stick. It is a beautiful piece of art with feathers tied to an end with a leather thong. For those unfamiliar with the talking stick, many indigenous American cultures use this tool when a group of people are meeting to discuss…..well, just about anything. The stick is passed around and when it is in a person’s grasp, only he or she may speak. There can be no interruptions, side-talk or other distractions. There is one person who speaks and the role of all others is to listen. This process – of providing space for people to express themselves without interruption – is essential to any dispute resolution process – be it couples therapy, divorce mediation or a larger group process. I always tell people who sit in my office – so full of anxiety about the specter of conflict that hovers in the room – that I will keep the other from interrupting so that each has a space to speak. I have not hesitated to get up in between people if the sparks start to fly. “You can do this – you have done this – quite well on your own. You don’t need to pay me to do this in my office. My role here is to keep this place safe, so if you are listening to what the other is saying and you believe it is not accurate or you need to defend yourself, please hold it and you will have your opportunity.” This rule, together with a chiding reminder that conflict is made safer and resolvable when each person talks about their own experience, helps move a process which initially may seem frightening or overwhelming to a platform of acceptance.
I attended a Washington continuing legal education workshop recently to make sure I was keeping up in the newest developments in our family law. One of the most interesting sections involved a panel of very seasoned practitioners who also perform “mediation” services, discussing the implications of a recent appellate court decision called Marriage of Rockwell. The Appeals Court said, in passing, that in a marriage lasting 25 years or longer the court should seek to provide the two parties a roughly equal standard of living for the remainder of their lives. Let’s just say that lawyers aren’t real pleased with this broad rule because it both turns long running standards on their head and imposes a blanket rule that doesn’t take into consideration important nuance. (What if Husband and Wife get married when they are 20 and divorce at 45? Does the higher earner owe maintenance to the other for the next 20 years? Does this mean that the Wife’s inheritance from her parents (which is considered to be her separate property and usually awarded to her, alone, in almost any state) is now up for grabs, with her husband of 25 years getting half? What if they are married 24 years? 22?) Anyway, while the questions about the decision will continue, it is now on the books in Washington and the “mediator” panelists talked about how they would employ this new legal authority. (Note that I place the term “mediator” in quotes because the process employed by lawyers is more of a “settlement conference” which is a one shot, usually all-day, ordeal in which the two people are separated and the “mediator” goes between conference rooms and tries to move the recalcitrant parties closer – and then to binding agreement by the end of the day.) One panelists felt he was being clever when he referred to the “Rockwell whuppin’ stick” and another experienced “mediator” chimed in with reference to the use of this opinion as a “whuppin’ stick.” (As in, “If the husband is being stubborn about spousal maintenance, I can use Rockwell as a whuppin’ stick and tell him that a court could order a much greater, outrageous, term of alimony under that case.”)
What really ate at me the next day was how each of these people saw their role of getting wounded, frightened, angry, defensive and all-around emotionally challenged people to come to agreements that will impact the rest of their lives by hitting them with a “whuppin’ stick.” The absolute essential key to a solid, durable and effective agreement is that each person enter the agreement without undue resistance. Each must understand and accept what he or she relinquishes in the agreement. Equally important, each must acknowledge (to themselves at least) what he or she gained from the agreement. My strongest criticism of the conventional legal “mediation” is that at the end of the day, each person will generally feel emotionally and mentally drained with a very high degree of resentment and “woulda, shoulda coulda’s” the next morning. This risk is certainly accentuated when the settlement conference official finds a new rule of law, however flawed and criticized, to use as a “whuppin’ stick” to bring people into line and move toward settlement.