By: Shawn Weber, Esq. FRI Founder, Attorney, Mediator, Collaborative Divorce Practitioner
©2017 By Shawn Weber
Perhaps the most important divorce mediation skill I have learned over the years as a family law mediator is keeping one’s eye on the emotional need. While cases may involve the analysis of law or complex financial issues, the emotions surrounding those issues are crucial to finding the pathway to settlement. In fact, the case won’t settle until both parties’ emotional needs are satisfied or, at least, addressed. Here are some suggestions about how to tease out the emotional need and then take steps to address it.
Emotions are not always logical or rational.
There’s a temptation as a mediator to look for the most logical conclusion to a dispute. Most of us have the experience in divorce work to generally know which way a case ought to go logically. It’s easy for a neutral without the burden of emotional ties to “cut to the chase” with a simple logical conclusion. Making a rational analysis and helping parties see the logical is clearly an important divorce mediation skill.
But, imposing our will on what is “rational” or “logical” from our point of view without addressing the parties emotional concerns surrounding the issue will often blow up in our face. People are capable of seeing logic, but they don’t typically make decisions based on what they think about an issue. Rather, people make their decisions based on how the feel about the issue.
Cases where people are fighting about what to do with the house are a good example. Sometimes, a party will insist on keeping a house when the math doesn’t add up. Even though you can show the numbers and provide a succinct, logical argument supporting a sale of the house, a party may still insist on trying to keep an affordable home.
However, the reasons for keeping the home may be largely emotional. Maybe there is a long history with important memories associated with the house. Perhaps the person feels insecure and the house is the only stable thing in their lives during the chaotic and frightening time of the divorce. It may be that a lot of personal, sweat, tears and labors of love went into renovating or decorating the house and the person just can’t imagine selling something that carries so much of them in it. For them, it’s not just some impersonal piece of real estate with aa simple dollar value. The value is far more intrinsic based on the emotional connection and not on the economic fair market value. A mediator would ignore these emotional connections and cues at her peril.
The issue is not the issue.
Remember, the issue that appears on the surface may not be the issue. Teasing out what is really motivating a person is an essential divorce mediation skill. Perhaps a person’s reason for avoiding alimony is less about economic concerns and much more about feelings.
For example, I had a case recently where the wife was absolutely unwilling to pay alimony. We looked at the numbers and the law. The analysis showed that it made complete sense that she should pay alimony. She could afford it and frankly the law would demand it. But she still refused.
Upon digging deeper, we learned that her resistance to pay support to her husband had much more to do with her resentment that, from her perspective, he had not contributed to or supported her successful career and had not worked outside the home during he marriage as much as she had wanted. The argument of his contributing more the family finances during the marriage was a source of contention throughout the marriage and she had resented that when they had children, she as working outside the home while he was able to spend time with the children.
She was angry that she had missed out on a lot the children’s early years because she was traveling for work. She blamed him because she felt she would not have had to work as much if he had contributed more to the finances. The issue was not the issue.
Be curious with the divorce mediation skill of active listening.
To tease out what the issue really is, a good divorce mediator will master the divorce mediation skill of curiosity. By using active listening techniques and open ended questions, you can get to the bottom of what motivates a person. People are like onions with many layers. Take the “Columbo” approach and ask lots of questions. If folks hesitate to share their concerns in front of the other party, consider meeting separately to probe even deeper. In my experience, the first answer rarely gets to the heart of the emotional concern. Probing deeper allows the mediator to find out what is really going on.
Once the emotional need is discovered, the skilled and trained mediator will address it.
I have learned over the years that simply acknowledging and addressing the emotional need does more good than anything. It doesn’t need to necessarily resolve in a way that the emotional party may want, however. Rather, simply acknowledging the emotional need can go a long way for a person to let go and choose the more rational outcome.
In the example of the spouse not wanting to pay support described above, the wife agreed to pay alimony in the end. While she wasn’t happy about it, she understood that it was what needed to happen. Although she was very angry and emotional about the issue, she was able to release the block keeping her from agreeing once we spent time during the mediation acknowledging and validating her feelings about the issue. Helping the other party see why this issue made her upset went a long way too. Touching the emotional need doesn’t always mean that the case is settled in the way the emotional need would dictate. Instead, it is more about uncovering and acknowledging it.