“You mean I have to stay in the same room as him?”

One of the things I’ve turned over and over in my head recently is why we have a double standard in mediation over keeping parties at the table.

We teach our baby mediators to keep the parties at the table during the mediation so they can have an easier exchange of ideas and keep the flow at a collaborative, rather than adversarial pace.  Students go along willingly with this idea; they will play  act the parties while sitting at the same table.  On occasion while the parties are hashing out a solution to a “problem” during the faux mediation the students will even sit next to each other.  Once the students graduate and start getting cases, though, they find a marked shift from this approach towards what teachers call “shuttle diplomacy”–keeping the parties in separate rooms with their attorneys while the mediator transports offers back and forth.  If the baby mediator is stubborn enough, they will persist in the approach they were taught only to meet derision and resistance from the parties and their attorneys.  The biggest objections to the process as educators preach is that it’s “not how things work in the real world” from attorneys, and “I can’t stay in the same room as him/her” by the parties.

No one gives an explanation for “why” shuttle diplomacy is the preferred method, or why it’s what “works.”  In fact, those parties who use it end up more often than not with agreements circling back to conflict or contest.  Neither side feels as through they’ve gotten a “fair deal,” or “expanded the pie” as mediation theorists call it–they just feel like they had to deal with the one person they can’t stand to see most.

I get why this is a problem better these days–the mediator is failing to focus the parties on the problems, and as a result they end up focusing on the person.

Too many people forget mediating parties have stopped communicating effectively when they show up at the mediation table.  In fact, one of the things I say during my opening remarks before the mediation begins is “Part of my job is to teach you how to have an effective communication again.” Most conflicts end up in court because the two sides aren’t effectively communicating, and we’re now expecting them to shove their personal differences and feelings toward the party with whom they are directly in conflict aside to fix the problem? This is akin to asking the Hatfields and McCoys to stop shooting each other for ten minutes “just to work things out.”  Divorcing parties are no different.  They’re being asked to take the one person in whom they have the least trust at that particular moment and just shove their feelings aside for a couple of hours.

This is why providing the parties with focus is so important.  When I first started doing mediations, I took along a flip chart with me purchased from the nearest office supply store, and took some different colored markers and an easel with me to the mediation site.  As the problems came up, I’d write them on the chart.  I’d also stick the problems on the wall one by one and add another page next to it with solutions.  The parties used that flip chart to remain at the table, and it kept them thinking about the conflict instead of everything wrong with their spouse/co-litigant.  It almost served to take the mediating parties “back to school” and turned me into a teacher with a faux blackboard, asking the parties to “pay attention” and keep them focused on the “assignment” of solving their problems.

I was surprised to sit in mediations with some people and never see a central point of focus for the parties in conflict.  This was completely against the method I’d been taught, and eventually I began questioning fellow mediators as to why this wasn’t a common practice.  Several responded that it was a means that made more sense.  Others stated they’d never considered using a flip chart or some focal point in the room to direct party energy.  All seemed to think the idea was a good one, and decided to use it for themselves.  When the non-focal mediators started using devices to direct party attention on the problem, they inevitably came back to me and said it was a useful tool for navigating conflict and keeping everyone on course to resolution.

One of the things that makes the Wevorce method of mediation so unique is its approach to the “flip chart” method.  Parties using Wevorce are directed toward an external computer monitor with a webcam attached.  This allows the parties to focus on the software and see the “wow” factor the technology provides, and gives them a chance to engage a second professional in the session (the parenting specialist for the parenting planning meetings and the financial architect for the financial mapping) when appropriate. Suddenly the “I can’t stand this person” feeling is secondary or tertiary to the “wow” factor inherent in the proprietary software and the extra specialist on the video conference assisting with the most pressing matters.  I think this to be a major advantage to the Wevorce method of divorce mediation–the touted “high tech and high touch” approach is in full swing when the parties are speaking with an Architect and seeing their agreements appear on screen.  One might even think this to be a major advantage of melding alternative dispute resolution with technology: the “wow” can take away from the “it hurts now.”

Keeping parties focused and on track during a mediation is paramount to successful conflict resolution and making sustainable agreements.  If you’ve yet to try the “flip chart” method for a mediation, give it a shot.  If you’re a party in mediation, and afraid to speak with someone eye to eye, ask if the agreements can be memorialized on a larger platorm than just a notepad.  You might be surprised at just how much better the agreement works out.


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