At its core, mediation is designed to be a process by which parties reach an amicable agreement through compromise. This is what most litigants want, right? Avoid the fighting, along with the associated time and expense – sounds great. So what does psychology have to do with the mediation process? Well, it can truly mean a lot whether a litigant wants it to or not, especially in custody and parenting time disputes.
I am not referring to the psychology used to strategically mediate your matter into a better deal for yourself. I am referring to the psychology of each party needed to determine, respect and understand where the other party is coming from. I was once in a mediation where the mediator looked straight into the eyes of one party and asked if he respected the other party as a person or a parent – the litigant, without hesitation, said “no.” When the same question was posed to the other party, she gave the same answer. Not surprisingly, the mediation didn’t go well. This should not mean that litigants need to respect each other for a case to settle. Quite frankly, a lack of respect for the other person is not uncommon in divorce matters, and may even be understandable, especially in matters involving adultery, extreme cruelty, and overall heightened levels of acrimony. A respect and understanding for the other person’s position, however, can be extremely beneficial in getting a matter resolved in a fair and equitable manner for all involved.
So, when the mediator asks why you, as the litigant, would ever dream of taking a certain position and how it made the other party feel, this should not be taken as the mediator disagreeing with you. Rather, it should be viewed as the mediator trying to understand where you are coming from and whether you understand why the other party may not agree and, ultimately, if the respective positions are fair and reasonable on that given issue. This is certainly not the easiest thing to realize and it may feel like you, as the litigant, are being questioned under a spotlight by the person that you thought was supposed to be neutral. It is best to keep in mind, however, that the mediator is there to act as a neutral and to bring everyone to a deal that makes sense and, to the extent possible, is in everyone’s best interests.
While many cases can simply proceed through mediation and settle without getting into this type of thought process, it can certainly help to take a step back and analyze the matter from a 1,000 foot bird’s-eye view to see where both parties are coming from. As I indicated at the outset, this is especially true in custody and parenting time matters, where the emotions run higher than when the issue is strictly one of a financial nature. This is not about liking or respecting the other person. After all, you are getting divorced and trying to move on with your life for a reason. Rather, this is about reaching a fair and amicable settlement that works for everyone involved. If you can do that, then you are already one step ahead of the game towards resolving your matter.