Mediator Neutrality -- How is it possible?
How could a mediator be neutral about your situation when you are getting divorced? Surely one of you is right and the other is wrong! If you know in your bones – and all of your friends agree – that you are right, you may think that mediation would not make sense for you, because you don’t want to compromise.
First of all – let me reassure you that you won’t agree to anything in mediation that you don’t want to agree to! But something happens in mediation that changes people’s goals and outlook. I don’t ask my clients to agree with each other – just to make an honest effort to understand each other. And to accomplish that, it turns out that mediator neutrality is one of the most valuable and powerful tools I have.
If I really understand how you are feeling, what this experience has done to you, what this means for you, the challenges that you are facing as you try to restructure your life – then I can help your spouse understand these things. And I can also make sure that the agreement that we put together takes care of you and your needs.
The theory underlying our adversarial legal system, is that each person will hire a bright, skilled warrior who will see the situation completely from the perspective of the client, and then present the strongest case possible to the judge. The judge will get the best information from each side, but will be neutral. The judge will see the situation from above and will render a decision which metes out justice and wisdom.
Sadly, because of our over-loaded and burdened court system, most judges do not have the time to get to know the people behind the case-load. People who go through the court system often end up feeling that they did not have their story heard by the judge, and that they were not given a chance to speak.
Mediation will give you that chance – and you are the best person to speak about your life and your needs. No expert knows your life as well as you and your spouse do. In truth, no hired expert will care as much as you do – because only you and your family will live with the agreement you make. You are the people who are in the best position to decide what should happen with your family, your possessions, and with your divorce.
As a mediator, I will not act as a judge, in that I will not make decisions FOR you – but I will act as a judge in that I will remain neutral. I will do my best to listen to everything that each of you needs to say, and I will ask questions to make sure that we have all of the information we need. If one person needs additional information, I will help to brainstorm to figure out how to get the information to that person. He or she might need the assistance of an accountant, a financial planner, or an attorney, before feeling confident enough to evaluate offers that are on the table or have enough background information to make decisions.
will use all of the tools I have to make sure that each person HEARS the other. There is always miscommunication between divorcing people, but a neutral mediator can help to improve the communication to make sure that you understand where the other is coming from, and why you believe the proposed result is right. You don’t have to agree with each other – but it helps to understand why you disagree.
That is the theory. How does it work in practice? How is it possible to be on both people’s sides, when they are in a conflict?
Anice and Marshall came to me for divorce mediation. Anice expressed her thoughts clearly. She loved Marshall passionately and still believed that he was the love of her life. She had made a commitment to him which, to her, meant that she would stay with him no matter what. She told me that Marshall had had other affairs in the past, and had always returned to his commitment to her. “How do I know that this time you are serious?” she asked him. “What makes you think that, 3 months from now, you won’t change your mind again and come back to me?”
The couple had recently purchased a house. Anice said, “Why did you buy this house with me if you wanted to get out of the relationship?” The couple had greatly disparate incomes, and although Anice had been the motivating force behind their buying their home, she was not at the present time able to figure out how to pay the expenses of the house by herself.
I could have felt that Anice was “right,” and Marshall – a lousy toad. She was the one with commitment and vision, she felt sure that this marriage was the right thing and was able to stick with her husband through thick and thin. She planned and worked to enable them to buy a home. And after this loyalty, what was her reward? Constant betrayal, multiple affairs!
Then Marshall told me about his experience. He spoke eloquently about his need to move on from a relationship which felt stagnant to him, and from which he could no longer derive any sense of intimacy or romance. He was very grateful to Anice for all the love and support he had gotten from her, and the achievements he accomplished because of her support. But for a long time he had felt that there was something missing. This feeling drove him to seek outside relationships, even though he had derived from Anice love such as he had never before experienced in his life.
At the present time, he felt stifled by the relationship. He felt responsible for Anise. He was aware that she wasn’t able to earn as much money as he could earn, and he felt trapped. Although he felt platonic love and respect for Anice, he had a new girlfriend. For Marshall, the 12-year relationship had evolved into a friendship.
After hearing Marshall, I felt his pain. I felt how Anice’s willingness to stay in a relationship with a man who was sleeping with another woman made Marshall feel trapped. He saw her as a crazy woman who had no self respect, who would live with him even though he rejected her.
In truth, I felt great empathy for both Anice and Marshall. Through my understanding of them, I was able to sympathize with Anice, who felt deeply committed to this man, and hurt every time he told her that he still loved her – and who felt that she would have stayed with him no matter what happened, even if he had outside relationships.
I felt empathy for Marshall, who expressed that this marriage, though it had endured for 12 years, had never completely fulfilled him. He felt an excitement at the change to break free and try again in a new relationship for something that felt more healthy and fulfilling and less co-dependent and suffocating than his relationship with Anise.
My job, now was to do my best to increase their understanding of each other. Marshall had a better understanding of how Anice felt than she had of his point of view. Once understanding is improved, they would be ready to negotiate the fairest way for them to divide their house and their possessions.
Anise had to confront the reality that Marshall wanted a divorce. When I helped her to accept this, she was able to negotiate alimony for a period of time, so that she could keep the house and eventually become self-sufficient. Marshall saw the alimony as a way to buy his freedom, and it was a great relief to him to be able to do that. They were both satisfied with the terms and their divorce agreement was completed.
Children perceive their parents neutrally during a divorce. As much as you might want your child to side with you against the other parent – it won’t happen – and it shouldn’t happen. A child will never thank you for taking away his mother or father. The children each contain a little bit of each parent, and they are able intuitively to understand both parents’ points-of-view. The children understand the limitations and strengths of both their parents and love them.
I can think of many cases where I had deep empathy with both people, and could see both their sides. I had a case where the marriage was breaking up because the woman was a lesbian. I empathized with the husband, Allen, who, in his early 50’s had to leave his beautiful house. He had to rethink his whole life with Marge, in light of these changes in her outlook. He had believed he’d had an OK marriage. He didn’t want a new life, but the old one had been snatched from him.
Marge was able to communicate to me the excitement and liberation she felt as she embarked on her new life. She showed me that something had always felt “wrong,” in her life, and now, for the first time she didn’t have that feeling.
Marge came to mediation believing that she had embarked on a course of self-discovery. But during our sessions, she came to a new understanding of how this journey had affected Allen. She ended up giving him a more generous financial settlement, partly to assuage her guilt, and partly to help Allen to also feel that he was getting an opportunity to embark on a new life – that might hold some promise, excitement, even happiness not present in their old one.
The truth is that it is never simple to determine why a marriage ends. Something was probably always lacking in Allen and Marge’s marriage. Why didn’t Allen see that? Why didn’t Marge know earlier? The end of the marriage is created by both, as the beginning was created by both.
My challenge is always to understand both people. In another case the husband, Brad, went out to get a newspaper one Sunday morning and did not come back or call for 3 days. He left Helen with 2 young children, without even a note. I could imagine her anguish, and the fear of the children. But during our sessions, I could see that Helen never let Brad speak!! I’m not saying that what he did was right, only that I understand that he did the best he could and that something drove him to do this terrible thing. Something that he felt had been equally awful had been done to him or he would not have done this to her.
And that is probably the crux. I do believe that most of us are trying the best we can to make our way through this life. We try not to hurt the people we love, or have loved. And we do our best. But we are imperfect creatures, so we do not always succeed. We are hurt and we lash out – and the other may not know that he/she has hurt us. Through my understanding, I can often help people to forgive themselves and each other – which will help them to move forward into their new lives post-divorce.
Divorce raises all kinds of hurdles, as you restructure and begin to figure out your new life – and also raises all kinds of complex emotions. When you are navigating the maze of these changes, the last thing you might want to hear is that your spouse’s position has some validity. (And that is one of the appeals of the adversarial system. When you are hurt, angry and shaken up, who would not want to hire an experienced warrior, who will tell you that you are right and that your evil spouse should make amends – usually monetary – to avenge these wrongs?)
These feelings are especially intense where the impetus for the break-up of the marriage is a situation with deep emotional effect – for example, where one person has a new lover, or where one person walked out on the other very suddenly and without warning. The “right” spouse might find that the new identity as a wronged person becomes intensely compelling and attractive.
Rachel Fishman Green, Esq. is a divorce mediator and attorney, and the director of ReSolutions in Park Slope, Brooklyn. She can be reached at 718-965-9236, or at Rachel@mediate2resolution.com.