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December 2020 Tips by Fran – Mediator Communications

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.