The Power of Mediator as an Agent of Reality (Mediator's story)

?Sr?an ?imac, Stories Mediators Tell, World Edition, Editors: Lela Love & Glen Parker, American Bar Association, 2017

Mediator's story - The Dentist's Chair and the Rolling Stones

Lost in the Fight

I met Dana and Mark after they had spent four exhausting years in court, taking legal actions against each other during an adversarial divorce. Through this process, the court had granted them a divorce and given the full custody of eight-year-old Karlo and six-year-old Tina to Dana. By the time they got to me, they were going through hard and bitter trials over the distribution of their property and Marks visitation with the children. It had become less of a divorce and more of a never-ending boxing match.

As Dana described it, Mark had abandoned her for a much younger woman. Jealousy twisted her guts so strongly that she couldn't even sleep without thinking of ways to pay him back for all the hurt he had caused her. Dana used her position of having full custody of the children to hurt her ex-husband. One way she got revenge was by filing several false charges against Mark, alleging his use of violence, successfully depriving him of his right to see the children.

In return, Mark had started to fight against her with all means possible to get his children back. He initiated proceedings to proclaim her mentally unable to take care of their children, even though she was perfectly competent. Mark also did everything he could to deprive Dana of financial support, including going out of his way to personally buy food, clothes, toys, school supplies, and other necessities for the children—sometimes duplicating what they already had.

These actions resulted in a general feeling of nausea and mounting dissatisfaction, all without any positive effect. Dana and Mark were stuck on a bumpy road to nowhere. They competed in hurting one another, without realizing that the biggest victims were Karlo and Tina. Neither they nor their lawyers could find a way out of the ever worsening situation. There was no end in sight to this legal war, which drained them both mentally and financially. Time had passed, and it was as though the reasons for their fight were forgot-ten, but the fight itself had become a central purpose in each of their lives.

That is how Dana, a worthy bank clerk, and Mark, a diligent dentist with his own practice, appeared when I first met them.

The Mediation Begins

One day, Marks lawyer suggested mediation. That lawyer, who was also Marks brother, had attended a mediation training where I was one of the coaches. He was an experienced litigator, and during the training, he recognized the potential of mediation. Armed with newly acquired skills and knowledge, he shared his experience with Mark after concluding that this way of settling the dispute could be a great opportunity for them. Mark was the first to agree to participate. After discussion with her lawyer about mediation, Dana agreed too, hoping to find a way to a relatively quick and final solution.

They came to me requesting that I be their mediator. I was both surprised and flattered. I was surprised because even though I had had significant mediation experience, I had never before been a mediator in a family dispute. I was also flattered because even though Mark and Dana, as well as their lawyers, knew I had not taken part in family mediation, they were determined to make me their mediator. Their confidence and trust in me made it impossible for me to turn them down.

I must admit that I did have doubts about accepting this mediation. It is a common dilemma whether to choose a mediator who is an expert in the field of the dispute or simply to choose a good mediator, regardless of his or her expertise. I was inclined to the latter opinion, which encouraged me to accept, do my best, and prove that a good mediator can be successful in virtually all types of cases, regardless of his or her professional background.

I decided before our first meeting that I would only learn the basic information about the clients and their dispute, counting on their presumably powerful need to tell their stories as the means by which I would learn the relevant information. I decided that more knowledge beforehand about their respective cases would not be helpful in our common attempt to reach a destination desired by both sides.

The First Mediation Session

The first mediation session was held in downtown Zagreb in a beautiful mediation room at the Bar Association, which is housed in a grand old building full of historical significance. Large white windows warmly colored the whole interior in bright daylight. The centerpiece of the room was an especially handsome oval wooden conference table; I had high hopes that this table would be one of my faithful allies during the mediation, providing stability and beauty to the discussions. What friendly and promising surroundings, I thought.

Dana was in her late thirties. She was a pretty blond woman with a sweet face. She was slim and well dressed. Mark had just turned forty. He had dark hair, slowly receding, with casual gray sideburns. He was handsome, somewhat taller than Dana. He was muscular and looked like a person who visited the gym regularly

From their appearance, you would think they were happy, successful people. However, their smooth exteriors did not entirely hide the scars and bruises from their years of fighting. Despite her good looks and veneer of self-confidence, Dana seemed hesitant and insecure. Although fit and attractive, Mark had a harsh twist to his mouth. But however skeptical they seemed about the mediation, there also seemed to be a slight hope in each of them that it just might be the solution to their long-lasting conflict, which had become pointless and burdensome.

The conference table was slightly wider in the middle and narrower at its ends. I decided to put the parties and their lawyers in the middle of one side of the table and me in the middle of the other side. The parties positioned their lawyers in between, using them as a kind of buffer zone. I sat across from the attorneys, with their clients on either side of them.

After hearing my opening statement, which I had made to prepare them for what was ahead in mediation, the clients started, slowly and carefully, with their own opening statements. They avoided eye contact with one another and faced me as the mediator, as though urging me to take their side.

My intention was to seat both clients and their lawyers on one side of the table to emphasize the fact that they were not opponents, but partners in solving a common problem. My symbolic seating arrangement, however, did not prove to be helpful in that early phase of the mediation. Instead, the seating plan seemed to have the opposite effect. They pulled up their chairs, leaning their bodies against the table, and gave me their full attention, almost competing to make a stronger impression by talking to me as if the opposite side was not even there.

Their focus exclusively on me and their own narratives started an avalanche of words and feelings that were triggers for charged and negative emotional reactions. Their words became increasingly aggressive, and their tone, as well as their gestures, were hostile.

"You'll never see your children again, you cheating bastard," Dana told him while pointing a finger at him.

"Oh, really! Well, you're not getting another penny from me, you deceitful bitch!"

They sounded desperate, and they seemed to lack control over their words. A few times, the couple came close to giving up on mediation.

"What's the point of this anyway? I had better ways to spend my time today!" Mark said during this emotion-venting phase.

"Well, maybe you should have spent your time elsewhere!" Dana growled back.

Mark and Dana seemed to be two people in the wrong place. It was as if they were both overwhelmed with feelings of hopelessness and despair. Who knows how many times they had found themselves in the center of mutual accusation and blame.

Despite their antagonism, I was under the impression that they had an awareness of time running out for them—their expenses mounting and their children being victims of their fight. This awareness kept them going in the mediation.

Even with all the harsh language, Dana tried hard to seem calm, although she was visibly tense. She drank a whole bottle of water we had on the table in a matter of minutes, so I had to bring another one. Mark was huffing and puffing. He would run both hands through his hair, giving the impression of a person who does not see a way out. He looked like a drawn arrow ready to be shot.

The realization of having a common problem that they could only solve together seemed miles away. They would both often gasp and roll their eyes while shrugging their shoulders as if to say, "This doesn't make any sense."

After many hours, there was complete silence. It said more than words. I decided not to interrupt it, but to use its power and simply let it do its job. It reminded me of the lesson that silence is a crucial tool for a mediator—a tool that is frequently underestimated. Silence from my side gave Dana and Mark the chance to enjoy some space to think and to express themselves freely.

After sitting quietly for a while, Dana suddenly spoke and broke the silence: "If only you spent a little more time at home, things could have been completely different!"

Mark, who was distraught by the limited time he had with his children, had an infuriated look on his face and said, "No matter what you do, you're not going to keep me away from my kids! I love them."

Around this time, I started asking myself, "What am I doing here?" I felt that the session was less productive than I had expected and, at times, even counterproductive. It seemed that the seating arrangement had something to do with it. Dana and Mark had no direct communication or eye contact, which enabled them to stay in a destructive conversational mode. Without seeing one another, both literally and figuratively, they seemed freer to speak as though the other were not in the same room. If we met again, I determined to change this.

I was glad, though, they both had the chance to tell their sides of the story and explain what mattered to them. It had been a long time since anyone was willing to listen to either of them. Importantly, they were given an opportunity to express their pent up emotions in a controlled and non- threatening environment and to hear each other. Releasing these negative emotions helped create a more peaceful atmosphere near the end of the session. Maybe the peace was partly exhaustion, but I think by expressing those emotions, they actually showed each other how much they cared, even though it did not seem that way at the time.

Reaching what seemed to be a slightly calmer and more peaceful moment, I decided it was best to end the first session, which had lasted for five hours.

The Second Mediation Session

For the second session, I changed the seating arrangement and put Dana and Mark on opposite sides of the table, each with their own lawyers and me at the head, hoping that their eye contact would help them initiate and regulate their direct conversation.

"Dana, Mark," I addressed them, "I am sure that somewhere behind all this anger, there used to be love. I am sure you both remember the time when you had a deep connection to each other. You shared your lives with each other and gave birth to two beautiful kids. You can't forget all about those times. Can't you make one last push and try to overcome the obstacles that burden both of you so much?"

They spontaneously and silently nodded their heads, dropped their shoulders, and let out a deep breath. It was the first moment during mediation when they agreed, although without any words. From that moment, hope appeared in their eyes, and they seemed calmer. The initial hostility and their focus on only me were gradually replaced by direct communication.

A sincere and more reasoned discussion followed, making them forget the past for a while and resulting in lessened anxiety and the two of them talking to each other more kindly. However, reminding them of the positive sides of their past and the tremendous love they shared for their children was not enough to remove the barriers that blocked mutual understanding. In spite of the initial successes in improving their communication and the first steps being made towards their "sobering," the atmosphere in this mediation remained tense.

Once again my inner voice chimed in, "What am I doing here?" I asked myself this question a few times all the way to the end of the second mediation session because their venting of emotions did not produce any concrete resolutions. They would often raise their voices and try hard to convince one another that they were right. I remained stuck between two disappointed parents, who normally might be nice people but had become hostages of their own conflict. I was in the midst of a bitter, wild fight, and all of my mediation experience, training, and knowledge seemed not to help.

Of course, in those moments I tried my hardest not to show my insecurity. With my posture of feigned confidence and an occasional smile of understanding and support, I tried my best to send out signals so that my clients would feel confidence in me. My experience as a judge and a mediator, but also my life experience, turned out to be of great assistance. I managed to remove my occasional feeling of helplessness by applying my mediator s training in persistence and patience.

My mediators instinct kept whispering to me, "Let them vent their negative feelings more, listen, ask questions for clarification, care, respect, empathize." I felt that I just had to be patient and persistent, and something would come up. I knew I had to stick to their former love for each other and their enormous love for their children. Nevertheless, the difficulty of helping them forge a positive parenting relationship was much harder than expected.

"How was it possible for the court to decide the way it did? It stops me from being a father to my children and has put my ex-wife in a position to misuse its judgment," Mark said, clearly hurt by the strict court-imposed limitations concerning visiting his own children.

"God, I did nothing wrong to be punished like this," he continued, with his face in his palms. "I met a wonderful woman who loves me, and I love her. Don't I deserve to be happy? My former wife and I had a great time together, but now its gone. It happens. I am a good father, and I want to continue being one to my children for the rest of my life."

Dana remained calm, without offering any comments, perhaps showing some slight understanding. She suggested using that moment to end our second mediation session. Things seemed to be going better than before.

Proof Positive Is Challenged: Third Mediation Session

Mark was convinced that he was right in all parts of their dispute and frantically tried to convince everyone else at the table of this, including me. He made strong arguments in high-pitched tones, insisting that he was right concerning the ownership of an apartment, garage, and dental firm and regarding custody over the children. Looking at the common problem only from his own perspective, he did not see any elements that made him question his beliefs. After having presented numerous arguments that supported his own points of view and more arguments against his ex-wife's views, by the middle of the third session, he decided to pull out his strongest card.

"You know, Mr. Simac, many of your colleagues—judges and lawyers- are my patients. I wanted to make sure my arguments concerning this case were accurate, so I asked all of them whom they thought was right, me or my ex-wife." After that, he paused, looked me straight in the eyes, and with a firm expression mixed with triumph and happiness said, "You should know that every single one of them thinks I am right."

Mark then gave me his full attention as if we were alone, like two cowboys in a duel, looking at me with his eyes wide open, anticipating my reaction. It was as though he now expected me to side with him—a "checkmate" to the opposing side.

Thinking of all my colleagues, I wondered if he was right. I thought of divorce attorneys and matrimonial judges giving their approval of Mark's case, all based on years of experience in the field of family law— experience I didn't have. I couldn't say what merit Mark's position had or didn't have, and again I wondered what I was doing there. How could I contradict the collective opinion of what seemed like the whole Matrimonial Bar of Croatia?

But then I started thinking of my colleagues as Mark's patients. I had a mental picture of him talking to these legal experts. Was he speaking to them as he hovered over them, tools in hand, attacking a cavity or pulling a tooth? I imagined what I would do if Mark, in his dentists coat, stood over me with tools and bright lights, my mouth fixed in a vulnerable yawn, passionately asking for my opinion.

"All right, Mark," I said after a short pause, "I understand my colleagues comforted you and calmed you down. I can see where you're coming from. But, do you think there is a single person who, while sitting in your dentist's chair, waiting for you to give a shot in their gums or drill a tooth, would tell you that you are wrong?"

His eyes were wide open, surprised by my remark. You could see the triumph slowly disappearing from his face. He looked down and thought about what I had said. He finally took a long breath and said, "Hmm ... I have to admit, I never thought about it that way."

After that, the tension subsided, Mark seemed to calm down, and everything was quiet for the first time that session. Meanwhile, I could see a smile developing in the corner of Dana's lips. She was relieved without saying a word. Mark's brother, his lawyer, kept his cool, pretending nothing had happened, although it was obvious his own confidence was shaken. Dana's lawyer also said nothing but gave me a look of gratitude for my intervention.

The silence was suddenly interrupted by gentle and distant tones from somewhere within the neighborhood. Soothing music and lyrics came through the window, temporarily filling the room, and we heard, "You cant always get what you want, but if you try sometimes, you just might find, you get what you need." It was a breathtaking moment that marked the point in time where the clients unexpectedly started considering the differences in their wishes and needs.

After these two moments, which happened consecutively and seemed perfectly timed, the mediation was never the same again. A look of both serenity and determination to continue with mediation appeared on Marks face. He had shifted.

Dana appeared relieved as well. She admitted that Mark had been a great husband, that he was a devoted and caring father to Karlo and Tina, and that she knew how much they loved him. Dana and Mark started talking to each other directly, and they soon asked for the rest of us to leave the room and let the two of them talk in private.

I couldn't hide how happy I was for them to start talking to each other, alone. We could hear muffled sounds of calm conversation from behind the closed door, without any high or angry tones of voice. As their private session continued, their lawyers and I became more convinced that the final solution was getting closer. We were curious as to how this conversation was going to end. We knew they had reached the most important moment in their renewed communication and that it was slowly leading them to the end of their conflict.

After an hour of talking alone, Dana and Mark invited us back into the room. They had reached an agreement on all matters and decided to take a month to check whether their agreements worked.

Mark and Dana left the room feeling relaxed and showing respect for one another, exchanging caring words and gentle looks, aware that they had succeeded in replacing the previous hostility with cooperation that could lead them to their common goal of being good parents.

The Final Session and After

After a month, when Dana and Mark had made sure things worked in practice, they came back for their fourth, and last, mediation session and made a deal. They were totally different, calm and relaxed. There wasn't worry on their faces.

"Things are getting better. Everything was fine during this past month," Mark said.

"We tried hard, and we want to continue to do so," Dana added, "Everything we agreed on seemed to work just fine, and we wish to keep it that way. We started being friendly to each other about our kids every day, and the situation is improving."

The mistrust between them seemed healed. There were no more signs of wishing to harm each other. Even though they were not in an intimate relationship any longer, they were dedicated to being two great and individual parents to their children.

The written settlement was mostly prepared in advance by their law-yers, and an agreement was quickly finalized and signed. They revised the court's decision so it worked for them. Mark got the opportunity to see his children whenever it was possible, and their property was fairly divided between them. The nightmare for Dana and Mark was over. They felt great relief, which was palpable to others in the room.

I couldn't hide how happy I was. They made me proud. This was among my most powerful mediation experiences. It made me stronger as an individual and also as a mediator.

Reflections

My decision to accept the role of the mediator in this case had proven to be right, as well as my feeling that a good mediator can help his or her clients regardless of the nature of their dispute. Through this mediation, I gained confidence in some of my beliefs that are still being debated in the field, and I learned many mediation lessons all over again.

Expert Mediator or Mediator Expert?

We can all ask ourselves what it means to be a suitable mediator. Try putting yourself in Dana's and Marks positions and consider what kind of mediator you would choose. Would it be an expert mediator or a mediator expert?

Many clients, and especially their lawyers, believe that it is essential for the mediator to be knowledgeable about the subject matter of the case, which I believe is often based on one of two misconceptions. The first is that the mediator will express an opinion about the rights and wrongs of the parties' respective cases, and the second is that the mediators role is to impose a solution or a decision.

This seemed to be the opinion, or even desire, of Dana and Mark during my first session with them. And also during the second and third session, it seemed quite possible that the legal-opinion, or imposition, of a neutral would have satisfied them or would have given some relief to their hopeless story of conflict, like some deus ex machina.

It is understandable that with these images of the mediator s role be-ing linked to that of a judge, the parties will expect elements of specialist knowledge and expertise. But in adopting such an approach, the parties misconstrue the proper function of a mediator, who is neither a judge nor an arbitrator, but a facilitator enabling the parties to reach a settlement that makes sense to both of them and comes from both of them.

In fact, I believe that choosing a mediator for his or her expertise in a certain legal area can have many negative aspects. Experts often approach each case in the same customary way, which has been confirmed by their experience but is not necessarily the most suitable solution for those particular clients and their case. With the law and years of experience under their belts, it can be harder for such mediators to solve a dispute through a different, new, and, for them, rather unusual perspective. Mediator experts for certain legal areas instinctively and inevitably evaluate the strengths and weakness of each party's case. With such an approach, they can unconsciously create obstacles for the parties to finding the right solution.

Had I engaged with the legal aspects of the parties' claims, especially when Mark was prodding me to in the third session, the mediation would have taken a different course entirely. The attention would have shifted from the interests and needs of the parties to their legal entitlements. Perhaps an agreement would have been reached, but I strongly doubt that either would have come out from behind their lawyers to speak genuinely with one another, and the Rolling Stones ballad that came through the window might not have been heard.

It is quite understandable that clients and their lawyers can feel more comfortable when facing a mediator with expertise in the field of their dispute, particularly when it comes to highly complex and technical matters. These mediators may be in a better position to generate options for the best solution to a dispute. Choosing such a mediator, however, does not give the clients a guarantee of settlement, and it can increase the likelihood that any agreement reached will not address what's truly animating the conflict, especially when personal relationships are involved. The mediator without this special knowledge is able to acquire technical knowledge as needed directly from the clients during mediation and is also in a better position to look past the law and subject matter to discover ways to empower the parties to resolve matters on their own terms.

To see a conflict as simply a dispute over the law or technical facts often means missing an opportunity for healing and connection among the parties.

Mediation—The Art of Being Human

Beyond the law, there are other professions that "compete" in offering family mediation, such as psychologists and social workers, joined by mediators of other professions. Each of these professions has certain valuable skills and experience in working with families. Although I have no doubts about the importance of these special skills, I believe that the most important thing for a successful mediation is a good mediator instead of an expert from the area of the dispute. Mediation is not a legal procedure, nor is it psychotherapy or a case for social workers. The critical resource in conflict transformation in mediation is the parties' own basic humanity. Mediation is the pure art of being human. Mediation is a process of being with ordinary people in an ordinary dialogue, free from the opinions and standards of any kind of superior authority, even those of an expert.

Seating Arrangement

I am confident that the seating arrangement was among the most powerful and, at the same time, invisible contributors to the success of this particular mediation.

Despite numerous recommendations on how best to seat the clients and other participants in the dispute at the mediation table, it seems that the best rule is that there are no rules. Every mediation is different. All parties in mediation are different. And what works in one group often does not work in others. So be brave, feel the pulse of the clients, and adjust their seating arrangements to their needs and the needs of the resolution of the dispute. Experiment until you find the best solution.

With this mediation, my initial placement of Dana and Mark on the same side of the table was not helpful for their communication with each other. Nevertheless, it was a good decision because it allowed the parties to vent in the presence of each other but without having to look at the person who had caused them so much grief for four years. I think the seating change I made during the next session was pivotal in the resolution of the case. Seating them directly across from each other forced them to pay attention to each other. It allowed them not only to hear but also to follow each other's body language and communicate with their eyes. Clients at the mediation table, usually after a long time of conflict, get an opportunity to meet face to face and, perhaps for the first time, to hear each other s stories first-hand in a safe atmosphere, without intermediaries. I also think this physical shift was helpful because it represented the work that needed to be done: each needed to face the other and work out their future lives, despite the past, which they eventually did.

Reality Testing—The Objective Perspective

Objective criteria can be extremely helpful in a conflict. All people in a conflict tend to distort and twist the facts for their own purposes, and disputing parties are by default subjective. That is human nature. The mediator, as a third person in the conflict, represents the objective perspective. The mediator may help the clients to shift their worldviews and adopt a different, positive perspective on the problem. This shift enables the clients to change their positions. Without this shift, they may remain trapped in their limited viewpoint.

I believe the key moment of this mediation was Marks breakthrough that perhaps he was not as right as he believed. A reality test concerning the opinions he had gathered from professionals in his dentists chair was the most significant and successful example of reality testing in my entire career. What makes me particularly proud of this is that I wasn't testing the objective legal reality, but rather Mark's own personal basis for his self-assurance. Mark's perspective shift led to the moment I consider to be the biggest success for every mediator: the moment when the clients ask to be left alone, without the mediator or the lawyers. Dana and Mark's initial steps toward mutual cooperation culminated at this point, and mediation became a procedure of mutual validation.

Dana and Mark allowed themselves to become aware that regardless of the fact that they were no longer emotionally involved, they were permanently linked by parenting and love for their children. They realized that it was in the best interest of their children that they be on good terms so that they could be the best possible parents. As soon as they agreed on the most important issue, the father's access to the children, the matter of their property was settled in just a few minutes. Everybody was happy, including me. I could only imagine the smiling faces of those who were the happiest with the settlement, their children Karlo and Tina.

Search for the Cooperation Button

In litigation, it is not possible for both parties to win. In litigation, participants, including lawyers, are focused on beating, humiliating and damaging the opponent with all legal and extra-legal means. Can you imagine a doctor who is trying to cure his or her patient by hurting another one?

Law always creates a barrier between the clients in a dispute. Using only the legal approach to resolving a dispute forces the clients to increase the already high level of confrontation between them. In lawsuits, clients become warriors, believing it to be the only way for them to survive. The law can be a necessary recourse for disagreements, but it shouldn't be the only means of resolving them.

Entering into a spiral of conflict is a slow process. It escalates over its duration, depending on the actions of the parties. If parties allow themselves to be caught up in conflict traps, the conflict masters its victims like a strong virus, which is difficult to overcome without assistance. Parties can become prisoners of their conflict. Getting out of a conflict is hard, particularly when confrontation with the other side becomes the only communication tool. The difficult task of the clients in an escalated conflict is to find a way out of it with the mediator's help.

During the stage of being obsessed with conflict, especially in family disputes that are charged with negative emotions and additionally exacerbated by long litigation, it is hard for clients to realize how useless it is to fixate on their rights and legal positions instead of their needs and interests. Therefore, parties to legal fights often have incorrect expectations of the judicial process. By turning to the courts, they expect someone else to solve their problem and deliver justice. The truth is, no one can give parties justice other than themselves as we see with Dana and Mark in this mediation.

People are extremely competent and creative in creating conflicts. However, they are equally competent in solving those same conflicts. That is what is so impressive about mediation. It assumes that people have the capacity to handle their own problems. Therefore, one of the most important tasks of a mediator is to help clients activate those inner capacities for solving their own problems and changing their mode of behavior in a conflict—replacing confrontation with cooperation. A mediator is in a constant search for a way to turn off the button for confrontation and switch on the cooperation button.

The conflict does not exist if the clients refuse to participate in it. Therefore, the right choice of reaction or response to conflict is one of the most powerful tools for solving it. What is most difficult for people in a conflict is the awareness that they cannot expect to solve the conflict if they persist with the same behavior that led to the conflict. The task of a mediator is to remind the parties that they are free to choose the way that they will continue to act in a conflict. When parties become aware of their right to choose, things begin to change in mediation. Confrontation is replaced by cooperation. When that happens in mediation, it is magical.