By: Jeff J. Horn, Esq.
People often ask me why I practice divorce and family law. Implied in the question is the sense that they think I am crazy or that there is something wrong with me. Sometimes they are right.
One part of the divorce process – mediation – affords people getting divorced an opportunity to merge the constituent components of a divorce into a visual, tactile, and audio experience. Mediation is the process through which the law, money, mathematics, art, music, and the future all come together.
Mediation taps into the best of us. It has long been the process that keeps management and laborers talking in confidence and in private while swinging fists and stomping feet in public. Mediation is confidential and, unlike in court, people can be themselves. The way that people share their facts and feelings can be tailored to their individual traits and strengths. Their credibility suffers less scrutiny in mediation because things can be explained outside of the constraints of a time-pressured court hearing, court rules, and rules of evidence. Litigants that needs to talk through an issue, to both vent and to understand, have the opportunity to do so in mediation. Some litigants need to see every piece of the puzzle sketched out in front of him/her in order to work through a process like mediation. A successful mediation taps into the rhythms of the litigants: the angry litigant gets the chance to vent, and the reluctant, quiet litigant will have the facts gently coaxed out into the open when feelings flare. There is a place built into the mediation process to honor all those feelings.
Twenty years ago, mediation was for flakes and tree huggers. Courts were forced to embrace mediation by an angry public that wanted cases to move faster and litigants that wanted to stay out of the courthouse. Lawyers, by and large, thought that mediation would be their ruin. Lawyers are trained to wage battle in a defined arena and to follow specific rules. Rule followers are rewarded, and rule breakers are punished.
Mediation taps into something completely different. There are a few rules, and confidentiality is the primary one. Participants in mediation have the right and expectation that things discussed in mediation will not be used against them in court – providing boldly that false information serves neither the liar nor the rest of the participants in the mediation. I am not naïve. People fudge answers, but the big lies rarely survive even a casual Q&A session. Lawyers, even the born fighters, realize that mediation has an important role in resolving cases, even if only to have a neutral learned professional tell your client the bad news. Sometimes the bad news is that the fight the client wants will never be won, it will cost the client tons of money, and it will fail to serve the purpose for which the client hired an attorney in the first place. Having someone else, a third-party mediator, share that information with the client may be all that it takes to reposition a conversation about an entrenched idea and move on to a productive conversation about the future.
Agreements in mediation are better than court orders. Court orders are black and white. They can be argued with. They can be parsed and changed. They never sink into a person like an agreement does. Think of a mediated agreement as a piece of music performed by jazz saxophonist John Coltrane. Sheet music is written. The sheet music is the law and the numbers – the facts of the case. The emotional challenges, the bitterness that may shape mistrust, and the interpersonal conflict is the piano and drum work in a jazz song that keeps the heart beating and the toe-tapping. The jazz saxophonist grabs your attention through your ear into your heart. The space between the sound of the brilliant saxophone play is where the magic occurs. The background stuff is there, but the space between the notes is where the magic of the future exists. When you listen with your ears and your heart, you will know it’s coming. Only mediation allows for this creativity. The mediator directs the ensemble. But the mediator’s ensemble may be angry and eager, passive and reluctant. There may be aggressive lawyers or disinterested lawyers. They may be weeping litigants or litigants grabbing for the pen to sign an agreement just to get out. The mediator must get the music going, recognizing that it may not sound great until all those little spaces in between the notes are filled in, or the mediator can propose alternatives that the parties and their lawyers would have never dreamed of. People often shut down because they feel like if an idea is the other team’s idea then it is a bad idea. The mediator can take a whole bunch of bad ideas, listen to each party’s goals and dreams, rearrange them into some messy jazz music, and turn it into something that can be heard with the ear, seen with the eye, and felt with the heart.
The art of mediation is the binding of a disagreeable group of players and allowing their best features to be extracted and pieced together in a creative product that can be seen, felt, and heard. The art of mediation is the music of compromise and the messy jazz of a big future.
Although I have no musical talents or artistic abilities, as a lawyer and as a mediator I can sense when the ensemble will put something together that will last. When the ensemble shows just enough to reveal the true goals of each individual and their most basic human need, everyone makes progress. The mediator in a divorce case holds the composer’s stick in the power of the pen over the sheet music. The mediator warns the lawyers and litigants about playing a tune and then another and then another. By the time the recalcitrance litigant or flamethrower lawyer hears the other three people playing a consistent tune, he/she will find the toe-tapping and the urge to fight to ebb. That is when mediators earn some money and feel fulfilled. The music of mediation ends up in a written agreement, consented to and signed by all the parties. The best agreements never need to be looked at. The parties remember the tune. They know it is jazz – there will be moments of improvisation. They expect and welcome a mediated agreement as a roadmap for the future. The best agreements can be heard in the recesses of a clear mind.