Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4u.com at Fran@Familylaw4u.com. If you have any suggestions for future columns, please feel free to contact Fran.

“You can’t always get what you want, but if you try sometimes, you might find, you get what you need”.

Mick Jagger

This song lyric reminds me of the importance of encouraging people to negotiate at mediation.  Mediators need to encourage the parties to think outside the box and come up with creative solutions to their ongoing disputes. 

Over the years, I’ve developed the habit of asking parties, “Can you live with the agreements we have reached today?” I never ask parties if they are happy with the results. Generally, in family mediation neither party is “happy” with the outcome.  I like to remind people that stoning or flogging the other party into agreement is not allowed under our laws. 

At the beginning of my mediations, I usually let parties know that if they both hate me at the end of the mediation, then I did a good job. I also warn parties that mediation is exhausting and difficult since we discuss all the items that the parties could not agree to prior to mediation. I tell both parties that I will not force anyone to settle a dispute. I like to warn parties that I don’t have any magic fairy dust to make the other person be reasonable. 

Sometimes when negotiating at mediation, a party expresses their fears and concerns. I often let people know that they can express their fears to me at mediation, but in court the judge will just want to hear the facts. I find that by exploring and discussing their fears, mediation parties gradually begin to think clearer and begin to consider other possible options. 

At the end of the mediation process, whether we reached settlement or not, I thank the parties for participating. If an impasse was reached, I encourage the parties to continue to negotiate and try to continue finding ways to avoid “going to the judge.”

Over the years, I have found that many cases settle a few days after the mediation ends. People go home, think about their disputes, talk to someone they trust and/or decide that they just want their case over. The negotiations continue into their private time.

At the beginning of my mediations I assure both parties, “I  don’t have a horse in this race,” or “a dog in this hunt.” I like to mention I am a trained professional who has mediated for many years, and that my role is to be an impartial facilitator of their discussion.  I assure them that THEY are the decision makers, and that after an impasse it is usually a judge who will make all decisions. Since it’s family law, to connect with parties, I also point out that I’m on my 3rd marriage and I now co-grandparent with my ex. My elevator speech has become, “people come to me in knots and I untangle them.” I’m now considering changing it to, “I’m old & I know things.” 

With February being the month of love,  I wish everyone who reads this column a wonderful, fun, joyful Valentines. Appreciate and embrace all the positive things in your life. Don’t forget to give your loved ones a big hug – in person or virtual.

Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4u.com at Fran@Familylaw4u.com. If you have any suggestions for future columns, please feel free to contact Fran.

What it used to be like before the pandemic and how I got on the right track.

What a difference a year makes. A year ago I had never used Zoom. Then Mac-Arthur Pierre-Louis called me about InstantMediations and Zoom. I had never really considered Zoom until his call. He showed true patience in training me to use Zoom to mediate. And truthfully it was scary at first.

I had to give up some of my good practices I had developed when mediating in person. For example, while in person, I would allow third parties to stay in the room if I felt they were the decision maker or could help me negotiate. I know there are many mediators who do not share my view on third parties, but I’ve found third parties can make or break a mediation. Also, when mediating in person there were times in a case when the attorneys would meet in the kitchen or hallway and begin to hammer out a settlement, or I would bump into an attorney in the hallway and we would chat informally about the issues. Finally, mediating in person allowed parties to come to my office and stand on neutral territory. And meeting in my office allowed everyone to be fed with snacks, which encouraged them to relax. All these things cannot be done so easily via Zoom mediations, or else I’ve had to think up “virtual” solutions to compensate. For the most part though, it has worked out. Zoom mediations are not absolutely good or absolutely bad when compared to in-person mediations; they are just different.

The beginnings were not easy.

It was all so scary at the beginning! Yet I convinced some girlfriends of mine to practice online mediation with me. Those initial Zoom practice meetings were frustratingly funny in hindsight.

I went through the “technical glitches” with Zoom as I learned the platform. Overall Zoom works pretty good. And I’ve learned lots of tricks to make the Zoom mediation run more effectively. For example, I find myself mouthing, “unmute,” or lifting my hand to my ear to get someone to unmute themselves. Who would have ever imagined that such motions would be part of 21^st century mediation practice.  I’m still struggling a bit with quickly getting mediated settlement agreement signed, but I have made progress in this area too. Lastly, I recall the internet connection issues I experienced when trying to get online. I eventually hard-wired my computer to my internet modem, and I even upgraded my internet speed.

How it is now and the benefits of Zoom.

Now I use Zoom regularly. I believe that Zoom will continue to be used even after the current health crisis is over. I know that some family law attorneys really like Zoom because they don’t have to travel up to an hour to and from the mediator’s office. I have also heard that attorneys hope uncontested hearings or finalizing uncontested cases can continue via Zoom. In Houston, when I had to appear in court as an attorney, I often spent 2 hours or more driving to the courthouse, parking, going through metal detectors, waiting on an elevator, and then waiting to approach the bench for a simple 3-minute hearing. Now all of that can be done from the office or home.

I like Zoom because it has reduced my overhead. I have no office rent and do not have to provide snacks and drinks to participants. I can wear a nice top, but do not need to spend a small fortune to beautify the rest of me.

Another advantage of Zoom mediations is that if the parties request it I can break up my usual 4 hour mediation sessions into shorter sessions. I try to avoid mediating over 6 hours because of mediation fatigue. I don’t want people to just be so worn out that they will agree to settle just to escape from the mediation. Note: I have done several mediations in person that went up to 12 hours, but everyone wanted to continue. I’ve discovered most cases longer than 8 hours usually settle.

On the negative side, I do find that Zoom mediations can be somewhat tiring on my part and I don’t always feel like the participants are fully engaged. I have trouble reading their subtle body language. And oftentimes, attorneys sometimes are still in litigation mode and not settlement mode. And occasionally there is the problem of third parties lurking off screen listening in to the conversation.

What the future may bring.

I have heard from several family law attorneys in Texas that their divorce business is booming. I guess that when people had to stay home with their family members and were not able to continue with normal routines, that it increased the stress in their relationships. I have heard on the news that domestic violence has been higher since everyone has had to stay home.

I do hope lots of it can be solved using online mediation.

I know that we are all looking forward to going back to “normal.” I’m not sure how that will actually look in 2021, but I feel confident that Zoom is here to stay.

Happy New Year and may all these video-conferencing tools like Zoom continue to help us for good to do good.

Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4u.com at Fran@Familylaw4u.com. If you have any suggestions for future columns, please feel free to contact Fran.

Communicate Effectively with Parties

I don’t take a person yelling and making demands personally. I don’t focus on the exact words they use, but instead focus on the overall emotion they project. Oftentimes, after a mediation has concluded, parties apologize to me about the things they had said, or for their screaming and cussing. I usually assure them that I understand their pain and emotion, and that I don’t take it personally. If you as a mediator cannot build a Teflon wall around yourself, and let parties’ comments bounce off of you, then you won’t do well in family law mediations. You must learn not to react negatively to inappropriate comments by parties.

I once had an attorney tell me not to speak directly to his client. Instead of arguing, I said ok. I then asked the attorney lots of open ended questions regarding his client’s positions, and within minutes, his client was chiming in, wanting to speak. So I encourage mediators to ask lots of open ended questions so that parties can have the opportunity to broadly describe what their goals are and what they want accomplished.

Sometimes, to fully understand a party’s position, I have found it helpful to ask them to define the words they use, or have them explain what meaning certain words hold for them. For example, when someone in Texas says that they want “full custody,” I have to ask them to explain how they define this term. Because in Texas, we don’t use the term “full custody” in family law. It’s usually joint or sole managing conservatorship, which may differ from what the person using “full custody” actually thinks. Because there can be misunderstandings in ambiguous language, it’s helpful to communicate terms accurately, and have parties confirm their understanding of certain words.

I have learned to ask potentially volatile questions in a passive, non-threatening, and non-accusatory way. I usually preface tough questions with something like, “I am going to ask you something that could upset you, but I am not accusing you of anything, so just listen to my question, and recognize that I’m not saying you did this, and know I’m not trying to intimidate you.” I find that asking a volatile question in a non-threatening way means it will usually be well received. Many times the person responding starts to laugh and says, “I knew the other party was going to bring that up.”

Listen to Parties

Most people are not happy when they come to see a mediator. There is conflict, sometimes a very deep one. Usually at least one party feels wronged, and they want justice. They want to be heard. They want to feel that someone believes them. So listening becomes one of the most important things a mediator can do. I let parties talk, vent, and explain themselves. I only usually stop a mediation party while they are on their soapbox when they begin to repeat the same thing, or when time becomes an issue. 

Commend Parties

Commending parties when they rise above the challenges they face with their opposition is a great way to build rapport. When I am dealing with a couple that puts their kids first and truly try to co-parent, I let them know that they are in the top 10% of people I deal with who do co-parenting differently. I let them know that there will be bumps in the road, but if they both always put their kids first and the adult needs-and-wants second, then their kids will thrive. I once had a man burst into tears when I told him that he was a “good dad,”  because no one had ever said anything positive to him before. I now try to commend parents when they are trying to do the right thing. I don’t stop there, I often ask one party how I should approach the other party, or in what ways I can reach the other side. Many times the person will give me some wonderful ideas that truly help me communicate effectively with their opponent. Commending parties builds trust and helps facilitate resolutions to major disagreements.

I love mediating. First, it makes me appreciate my family. Second, it’s like a roller coaster ride – you never know what is around the next corner. It reminds me of that television show Kids say the Darndest Things – at mediation often people say the darndest things, and we should be ready to listen and respond.

Wrapping Up

In closing, I wish everyone a healthy and happy holiday season. May you and your family have the gift of much laughter and joy. I hope everyone is able to relax and enjoy the end to 2020. And may the new year bring us all good health, happiness, prosperity, abundance, and only good surprises in 2021. 

Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4you.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.

1. As a mediator, you will never know what it takes to settle a case. And you don’t need to know.

I’ve learned that everyone (attorneys & parties) never tell me their true bottom line. So many times I’ve seen a case settle even though at the beginning of the mediation the person told me that they would never settle if they did not get “xx”. But at the end, the “xx” item gets discarded. So take every offer even if you think it won’t be accepted.  You are there to facilitate discussion but recognize that you never truly know a person’s bottom line.