Over the last several years there appears to be an increase in the number of separations and divorce due to one spouse "outgrowing the other". By this I mean a change in situation , usually acrual of a profession, change in social status, new environment in one spouse while the other remains where they were with little prospect of change.

Let's take an example. One spouse is in what we used to call a blue collar profession, and please don't take me wrong, I'm not disparaging blue collar workers. Here in Hawaii finidning one is sometimes harder than finding a medical professional.

But in our example let's say one spouse is a plumber. The other spouse pursues becoming a physician and once attained now is required to go through internships, residency, etc. and to assignments outside their area of residence. The plumber has built up a great set of clients and does not want to move. They begin to turn in different circles and before long start getting into disagreements, leading to conflict, and finally the relationship ruptures. Separation and divorce follow. An unhappy story.

They are in mediation. Sometimes there is lots of anger. More often there's a resignation, a feeling of defeat, the anger hasn't yet arrived, as it's overcome by a sense of inevitability.

This is an area in which avoiding, preventing, and resolving conflict has an opportunity to be applied. The couple involved may have children. Best interest of a child becomes  blurred and oftenpronounced between differences in views on academics, sports, religion, visitation. Financials become difficult because of the earning power gained thorugh a profession like medicine.

It doesn't have to be the medical professions. It can be a business degree. A promotion from secretary to a budget analyst. There just seems to be more and more of these cases coming to mediation and dealing with two wonderful people in such situations can be quite challenging. Keepi8ng best interest of the child in mind makes it most worthwhile. 

Joint mediation sessions offer opponents a chance to vent, converse, and negotiate through or at least in the presence of a third party, a meidator. However, there are times when it is advantageous to the process to meet with each party separately. Discussions may have grown overly emotional, off focus, argumentative, counterproductive. A party may need a break. A mediator may try and recalibrate where a party is going and trying to do that in joint session may have adverse results. For example a child custody mediation may seemingly be proceeding down lines which seem to indicate agreement will be reached on a parenting plan. All of a sudden one party voices a past incident which raises the hackles of the other party and an argument starts. Focus on the parenting plan is quickly being lost. One approach is, let’s take a time out and go into separate session. In the separate session our mediator finds out a reason this outburst occurred was because the incident took place on the holiday which was about to be discussed in the visitation plan. A mediator then has a chance to figure out how to allow the parties to deal with the hurt involved with this holiday as it pertains to the visitation plan. Or, in a contract dispute a party may be withholding information from the discussion because thy do not want the other party to know. However this information is critical for the mediator to understand in order to fill what looks like a big gap or a total disconnect. For example when a party is facing a money demand they may wish to pay but they may not wish to disclose they are facing bankruptcy and so need the mediator to understand why additional time is necessary. In addition a party can ask the mediator to keep the information disclosed confidential from the other party.

Are separate sessions subject to manipulation or abuse? Can a mediator be played in favor of a party through a separate session? Maybe a little more than in a joint session however, it is dependent on a mediators experience and skills in discerning when manipulation or abuse is taking place. If it is manipulation or abuse a mediator has a right to call it out and if this does not work then to consider withdrawing from a case. It is especially true when power imbalances are occurring. A mediator also has to watch out for feigns from a party about just how wonderful they are (as long as they let themselves be influenced by a party).

Separate sessions can play important, even critical, roles in resolution but there are mediators who will not go into separate sessions as their process, feeling rather, that all discussions should take place in joint session. I utilize separate sessions, taking into account the potential downside noted above and the use by one party to hold the other in suspense for long periods of time as part of the wearing down process in a negotiation.

Mediation is an intercession by a third party, unrelated to any of the other parties, when communications over an issue or issues has broken down. A professional mediator has received significant training and has experience in acting in this capacity, often as a facilitator, taking highly emotional and reducing the emotions so parties can focus on the issues rather than each other. Since trust has most likely been broken because during the interactions between the parties in a dispute they need an intercessor who can work within that broken trust or restore trust. Looking at some of the positive aspects of mediation makes it more likely people in dispute will turn to a mediator.

First and foremost in many people’s mind is in restoring a line of communication since most likely it has either broken down or is not productive. A mediator is a good listener, empathetic, and amongst other things a good problem solver. Through a mediators communications kills parties listening abilities are usually enhanced. Often they learn something new, gain knowledge of their disputants perspective, and can hear what they themselves are saying when a mediator reframes or reflects what a party says. Recently there’s been a lot of talk about connecting dots well when a mediator gives the parties a “common” problem statement, at times, light bulbs go off. When a mediator reduces a dispute to areas of common ground, often, parties, start seeing some light where there was darkness.

A mediation seeks to and often turns people from focusing on the past towards looking at the present and turning their attention to the future. Sometimes the past is covered with an understanding, an acknowledgment, a realization of hurt to the other party, and apology. The present is a realization of where parties stand in the now, what their needs are, and turns their attention to the future. Seeing resolution in present into the future is often enough for parties to move towards resolution.

A mediation is an exercise of choice and maintain choice. If parties decide to voluntarily mediate they mutually agree on a mediator and if they have done a good job of interviewing and mutually selecting a mediator that’s a pretty good indication they agree to communicate, put trust into a mediator, and work with each other in some kind of problem solving mode. During mediation they have choice on what they communicate, how they respond, and on their negotiation strategy. They have choice on agreeing on what is common ground, on voicing their needs, on expressing emotion, venting, on confidentiality of the proceedings, what a mediator can and cannot disclose when they are in separate sessions to the other side. Finally they have choice on what they agree to and what goes into an agreement leading to resolution. Resolution can be partial, it can be subject to legal review, it can be in plain language or as highly technical as they agree. Agreement has to be mutual.

And, it can save money and time. That’s not to say there shouldn’t be preparation. In some case preparation can require a lot of work. Lawyers do not have to be utilized for every mediation. Although lawyers can do a lot for preparation and if they are skilled in mediation they can be extremely helpful. If however, they are h --- bent on litigation, winner take all, their utility diminishes. Fortunately more and more attorneys are becoming skilled in mediation or mediating themselves.

Mediation can be fun. If you enjoy negotiating it’s a great venue.

A number of us have volunteered and are producing a video series on avoiding, preventing, and resolving conflict . As producer I’m planning a “special” on interests, issues, and needs that our children have in establishing a resolution culture in their school environments. What I’m intending to do is to take selected aspects of their school life to explore this concept. For example I’m looking at areas like violence amongst students, ostracism by factions within a school, and interactions which occur between the borders of school and the outside. The reason I’m so interested in the school environment is because that’s where we start building a resolution culture – through our youth. It’s not that I’ve given up in striving to work with adults. There are some good, adult leadership by example,  scenarios, however, the road from conflict to resolution is a tough one and needs time. It will take innovative and creative effort which more commonly resides in youth.

Our objective will at first be to highlight the types of challenges which our students face in their school environments, what they themselves are doing about it, and perhaps a facilitation to generate some new thought.

Here in Hawaii we are extremely fortunate to have a community television outlet and some very dedicated and talented volunteers to make this happen. We hope the powers to be will continue to support this franchise in 2010 and beyond.

The message being conveyed in this blog entry is that we’re taking the concept of “resolution” culture and translating that into video to add some spark to a much needed area – student collaboration in areas like peer mediation, facilitation, and assisted negotiation and to encourage school boards to provide the financial and adult resources necessary to reinvigorate these programs.