I remember a case I worked on as a young lawyer at a big San Francisco law firm where my client was caught up in litigation over an easement across her property. When my client initially visited the property before purchase, she saw her neighbor walking across her driveway. She asked the real estate agent to get that neighbor’s signature acknowledging no right to an easement across the property (which the neighbor had enjoyed for years with the previous owner). The neighbor signed the letter and the client purchased the house. After moving in, my client physically blocked off her neighbor’s access to the driveway with a very large tool shed. Enraged and insulted, the neighbor sued for right to an easement. They spent years and hundreds of thousands of dollars in litigation. At no point in the dispute did they speak to one another face-to-face.
Let’s be honest – if we tried really hard, could we come up with a more dysfunctional way to communicate amongst ourselves than via motions, discovery requests, and the occasional outraged, attorney-to-attorney letter?
It is ironic. Clients come to us with a problem. Technically, at the center of the maelstrom is a legal issue. But swirling around that point of law is a storm of emotions – anger, frustration, disappointment, anxiety, etc. And even when it is about money, it is not just about money. Money is highly symbolic. It represents security, prestige, respect, acknowledgment of harm done, and the desire to be made whole.
What got me excited about mediation was the possibility of fundamentally changing the way aggrieved parties seek damages. Instead of running from conflict, or hiring someone to wage our battles for us, we can find a safe space to re-engage, seek understanding, find power, and earn respect. Instead of duking it out through discovery and motions, we can discuss the problem in more commonsensical and personal notions of what it means to be harmed. Instead of assigning just a dollar value to our harm, we can allow parties to define and experience deeper, and perhaps emotional, components to their restitution.
I recently mediated a family law matter in which divorced parents returned to me after the father stopped paying child expenses (in clear breach of the marital settlement agreement I had mediated a year earlier). Following the parties lead, we spent the first hour and a half processing lingering resentments from the marriage and dissatisfaction with current parenting roles. The father felt that, during the marriage, he wasn’t valued as a partner but only as a financial provider. These feelings of exclusion and lack of appreciation around his role as a parent were surfacing once again in their post-divorce relationship. During the mediation, his ex-wife articulated her perceived sense of abandonment by him after their daughter was born. Her feelings that she was not getting enough physical and emotional support from him in caring for their daughter led to resentment and distance. He, in turn, described how, during that first year of their daughter’s life, he was struggling to balance his economic and professional responsibilities and his need to spend time with both his new family and a son from a previous marriage. He felt that she did not appreciate his commitment and efforts to do the right thing by everyone and, instead, got angry at him and pushed him away. And now, as the co-parent without primary custody, he was feeling excluded once again in important decisions related to their daughter.
The majority of this session was structured to enhance understanding and gain clarity. We did not problem solve around the issues they raised, but rather focused on increasing empathy. And only toward the very end of our session did we turn to finances. After five minutes of hearing the mother’s explanations about the reason for the increase in their daughter’s expenses, the father said: “OK. I have heard enough. I get it now.” He cut her a check and walked out the door. He has not missed a support payment since.
Obviously, family law is more prone to emotionality than civil cases. But I would posit that every case has a significant, if not critical, emotional component – and one whose resolution is crucial to the overall settlement of the case. For example, the easement case cited above was about interpersonal, not street, access. In practical terms, not having an easement added one minute to the neighbor’s walk to the street. But symbolically, the tool shed embodied the message that “You are cut off!” from good neighborly relations like she had with the previous owner. It was, therefore, a deep insult and constituted a fight against the owner’s social message that “We will not be connected.”
I would posit that every legal client seeks resolution on a deeper, more fundamental level in addition to a given financial outcome. And I would posit that lawyers (particularly litigators) are not trained to delve into emotions and are not practiced in holding difficult, if respectful, conversations. It is important for mediators to facilitate such an experience. Through understanding-based mediation, anger can subside, relationships can be repaired or closure achieved, and clients can move on.
When done well, the
of mediation, not just the financial outcome, makes the client whole.