Mary E. McNally, Esq. McNally Law Offices and Mediation Services Email Us 1350 Main Street Springfield, Massachusetts 01103 Phone: 413-747-7407 Fax: 413-731-1177

How and Why Mediation Works

If you have an unsolved legal problem in your life, whether it is business related or more personal, like a divorce or family issue, mediation rather than the traditional litigation approach may be a better way to resolve it.

Resolution of these problems is important for many reasons. Many, if not most, of us might think of money first when it comes to reasons why it makes sense to settle disputes. Surely, the expense of litigation is often very high. But I suggest there are other reasons which are equally, if not more important: peace of mind, time saved, and reduced stress to name a few.

Traditional divorce proceedings frequently take on an adversarial nature. This approach can make the difficult decision of separation even more stressful, especially if there are children involved. The mediation process can assist parties in the decision to end a marriage (or other relationship) by providing an environment in which a couple can make positive, informed, and mutually acceptable accommodations and agreements. Aided by a trained, impartial professional, divorcing or separating parties are encouraged to reach mutually acceptable solutions to their particular problems or circumstances.

Mediation by a skilled mediator is often successful because the mediator gets beneath the surface of the problem. By that I mean the mediator's analysis goes beyond the superficial aspects of the situation and attempts to address the deeper levels from which the conflict arises.

A good mediator therefore should have several skills, among them:

1. The ability to identify the issues about which people are fighting.
2. The ability to eliminate "backward" focus, that is, redirect the parties' thinking away from concentration on past hurts and injuries and instead focus on how to best address the management of their present or future conflicts.
3. The ability to identify why the issues cause such conflict for the individual. What is the reason/emotion fueling the position taken?
4. The ability to assist in developing "coping strategies." There are cases in which behavior is so deeply rooted and intertwined with emotion that future conflict may be inevitable; but reclaiming your energy to focus on your own needs and objectives when faced with these problems can be very positive and empowering. It can also be a crucial element in moving forward with other important issues in life. I often tell my clients that their own behavior in response to difficult circumstances can present a great challenge and an opportunity to teach themselves and their children how to manage difficult conflicts, develop character, and demonstrate integrity.
5. The ability to analyze and recognize expectations for what they are. People often demand accountability from someone unable to be responsible or accountable due to their own emotional immaturity or other limitations. So often frustration arises when we continue struggling to attain a result that just will not or cannot happen. Skilled mediators can help parties recognize when their expectations of self or others are not realistic.

The best result that a mediator can hope for is that the parties to the conflict will learn ways to eliminate the burdens placed on them by living with persistent, unresolved conflict. A reasonable settlement, which sometimes requires compromise from both sides, contributes to this result. The goal of mediation is to achieve settlements which provide a sense of security and a comfort level with the new relationship.

Mediation also promotes better future communication between the parties. This improved communication occurs because mediation requires civility and because the process encourages cooperation. Clients typically learn new ways of problem solving and other issue resolution techniques which hopefully will serve as models to establish an ongoing working relationship both during and especially after divorce. The process requires good faith and a willingness to learn to communicate in language which is non-threatening in content and tone.

Better communication sometimes occurs when one begins to appreciate the perspective of the other party to a dispute. It becomes much easier to resolve the problem. The use of the word "appreciation" in this context simply means understanding, not agreement or acquiescence. This concept is of particular importance in the context of matrimonial or other family-related disputes where there is, of necessity, an ongoing relationship. Once a party can understand the motivation behind the position, it is easier to develop an appropriate response.

Fear and anger are two very common emotions which often predominate the conduct of a domestic dispute, especially a divorce. A skilled mediator will recognize these emotions and the impact they have on negotiations. Let's face it, divorce is difficult. The difficulty is exacerbated when one of the parties is anxious over his/her future. This anxiety is real and needs to be recognized. For some, the fear of managing one's own financial affairs is quite daunting. Fearing the loss of security can be devastating. For others, the idea of living alone in the so-called "golden years" can be unnerving, if not downright depressing. There is also the anger that accompanies betrayal of vows or broken promises. I cannot count the number of times clients have asked me what they did to deserve this outcome. Obviously, there is no answer that fits all cases. Sometimes, there is no answer at all.

Mediation is a way to help people end relationships, recognize and accept their collective loss, and move through negotiation toward the completion of an agreement. Each step of the way is handled with sensitivity and confidentiality. Any children involved are spared the bickering and arguments which frequently accompany the traditional adversarial divorce. It is not a perfect solution, but it is an enormously better way in most cases.

Let me briefly return to the subject of money and time. The average traditional divorce may cost each party several thousands of dollars. (These costs are not always due to lawyers' greed, as some cynics may argue). The truth is that the court process imposes much "down time" for which clients pay. This is because the resources of the judicial system are not equal to the volume of cases it must handle. On the other hand, the average mediated divorce costs much less, and the cost is generally shared by the parties. Because the process remains fully focused on negotiation and issue resolution, mediation is enormously more time efficient. For each hour of mediation, the parties receive sixty minutes of attention from the mediator and each other. In addition, mediation employs a comprehensive approach on specific topics when they are ready to proceed.

In my view, there are some misconceptions about what mediation means, especially in the divorce context. It does not mean that you have to agree about everything. You have the right to state your position about an issue and your reasons for the position. In fact, mediation gives people much more of an opportunity to express themselves than traditional litigation affords. A professional mediator is able to spend a lot more time listening to why something matters to you than any judge will. This is true because in mediation you are not bound by the rules of evidence, as you are in court hearings. Also, in mediation, you have the floor as long as you need it. You get attention and focus, two positive ways to concentrate on solving your problem.

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