Mediator Neutrality: Seeing Both Sides

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, then present the strongest case possible to the judge. The judge will get the best information from each side, but will be neutral. Then the judge will see the situation “from above” and will render a decision that metes out justice and wisdom. But because of our overloaded and burdened court system, most judges do not have the time to get to know the people behind the caseload. People who go through the court system often end up feeling the judge did not really hear their story, and that they were not given a chance to speak.

Mediation gives clients the chance to be heard. One of the underlying assumptions of mediation is that people are the experts about their lives, their families and their needs. No expert will ever know or care about their issues as much as they do – because only they and their family will live with any agreements made.

How a Mediator Works

A mediator begins not by asking clients to agree with each other, but by asking them to make an honest effort to listen to and try to understand each other. To accomplish this, mediator neutrality is one of the most valuable and powerful tools available. If the mediator really understands how one party is feeling, what this experience has done to him or her and what challenges must be faced in trying to restructure a life, then they can help the other spouse understand these things. The mediator also helps them to make sure that the agreement they all put together in mediation takes care of as many of both spouses' needs as is possible.

As a mediator, I do not make decisions for clients as a judge does, but I do remain neutral as a judge does. I do my best to listen to everything each participant needs to say, asking questions to make sure that we have all of the information we need. If one person appears to need additional information, I will raise the issue, and help them to brainstorm to figure out how to get that information. He or she might need the assistance of an accountant, a financial planner, or an attorney, before feeling confident enough to evaluate offers or to have enough background information to make decisions. I 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 each understands where the other is coming from, and why he or she believes the proposed result is right. The mediator can reassure participants that they don't have to agree with each other — but understanding why they disagree can be very valuable in helping the mediator in his or her task.

Putting It into Practice

Neutrality is the goal. But how is it possible to be on both people's sides when they are in a conflict? A few examples will illustrate why stifling the natural response to rush to judgment can help the mediator help his or her clients.

Case Study #1: The Adulterer

In one case I handled, spouses Anice and Marshall came to me for divorce mediation. (Names and identifying information have been altered to protect confidentiality.) 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, who was at that time seeing another woman, had had other affairs in the past but had always returned to her. “How do I know that this time you are serious?” she asked him in our mediation session. “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, further confusing Anice. “Why did you buy this house with me if you wanted to get out of the relationship?” she asked. The couple had greatly disparate incomes, and although Anice had been the motivating force behind buying their new 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 that Marshall was, at best, a lousy toad. Anice 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 had 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 that felt stagnant to him, and from which he could no longer derive any sense of intimacy or romance. He was very grateful to his wife for all the love and support he had received from her, and for the achievements he was able to accomplish 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 Anice had been a loving wife. But now he felt stifled by the relationship and trapped by his responsibilities to Anice, who was not able to earn as much money as he could. Although he felt platonic love and respect for his wife, he had a new girlfriend. For Marshall, the 12-year marriage had evolved into simply a friendship.

After hearing Marshall, I could see his side of the situation, as well as Anice's. He saw her as a woman with no self-respect, who would live with him even though he rejected her. In truth, I felt great empathy for both Anice and Marshall. 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 improved, they would be ready to negotiate the fairest way for them to divide their house and their possessions.

Anice had to come to terms with the reality that Marshall truly wanted a divorce. When I helped her to accept this, she began to be able to think clearly about her future. In mediation, she negotiated 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. They each had an independent attorney review the agreement, and they were done.

Case Study #2: The Lesbian

In one case I handled, the marriage was breaking up because the wife had recently come out as a lesbian. I empathized with the husband, Allen, who, in his early 50s, 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 did not 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 did not 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 also feel that he was getting an opportunity to embark on a new life — one that might hold some promise, excitement, and even happiness not present in his 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 about her sexuality earlier? The mediator's challenge is always to attempt to see both sides, and then help the clients to better understand each other.

Case Study #3: Going Out for a Paper

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 wife Helen with two young children. I could imagine her anguish, and the children's fear, so I had to work hard not to pre-judge Brad for his rash behavior.

During our sessions, Helen was charming and engaging, but she dominated the conversation and never allowed Brad to speak. I came to understand that Brad did the best he could. His own frustration and pain, which for him felt as awful as his disappearance had felt to Helen, drove him to do this to her.

Once I began to have sympathy and understanding for Brad, I was able to work on equalizing the dialogue in mediation. I had to find a way to get Helen to stop talking and listen to Brad, and I did so by consciously making space for him to inject his thoughts into the conversation. I asked them if they could agree not to interrupt each other; and when Helen did interrupt, I reminded her of her agreement, and assured her that I also wanted to hear her thoughts — but that now it was Brad's turn.

Over the course of a few sessions, Brad began to talk more about his connection with his children, the financial strain he was experiencing and his sorrow about having left their beautiful home. Helen came to understand that they would both have to experience lifestyle changes, now that they were in two homes. They successfully negotiated a 50-50 parenting schedule, a time frame for selling the house, and a structure for Helen to receive maintenance — and then for it to end — with plans that she would return to her prior successful career.

Conclusion

Emotions run high where the impetus for the break-up of the marriage involves situations such as those illustrated above — where one party has a new lover, has revealed that the basis for the marriage was false, or has suddenly walked out without warning. The “right” spouse might find that the new identity as a wronged person becomes intensely compelling and attractive. As people restructure their lives, all kinds of complex emotions come into play. As they navigate through the maze of changes they must now face, the last thing many divorcing parties may want to hear is that their spouse's position has some validity. That is one of the appeals of the traditional adversarial system: When hurt, angry and shaken up, whose first reaction isn't to hire an experienced warrior, who will tell them they alone are right and that their evil spouse should make amends — usually monetary — to avenge their wrongs?

And that is probably the crux of mediator neutrality, and of the difference in outlook between a mediator and a litigator. Most people are trying the best they can to make their way through this life, and they try not to hurt the people they love, or have loved. They do their best. But we are all imperfect creatures, and don't always succeed. When people are hurt, they lash out — and the other party, perhaps not knowing how deeply their partner has been hurt, may not realize where that anger is coming from. The mediator, through neutral understanding, can often help people to forgive themselves and each other. That forgiveness will help them to move forward into their new lives, post-divorce.

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, then present the strongest case possible to the judge. The judge will get the best information from each side, but will be neutral. Then the judge will see the situation “from above” and will render a decision that metes out justice and wisdom. But because of our overloaded and burdened court system, most judges do not have the time to get to know the people behind the caseload. People who go through the court system often end up feeling the judge did not really hear their story, and that they were not given a chance to speak.

Mediation gives clients the chance to be heard. One of the underlying assumptions of mediation is that people are the experts about their lives, their families and their needs. No expert will ever know or care about their issues as much as they do – because only they and their family will live with any agreements made.

How a Mediator Works

A mediator begins not by asking clients to agree with each other, but by asking them to make an honest effort to listen to and try to understand each other. To accomplish this, mediator neutrality is one of the most valuable and powerful tools available. If the mediator really understands how one party is feeling, what this experience has done to him or her and what challenges must be faced in trying to restructure a life, then they can help the other spouse understand these things. The mediator also helps them to make sure that the agreement they all put together in mediation takes care of as many of both spouses' needs as is possible.

As a mediator, I do not make decisions for clients as a judge does, but I do remain neutral as a judge does. I do my best to listen to everything each participant needs to say, asking questions to make sure that we have all of the information we need. If one person appears to need additional information, I will raise the issue, and help them to brainstorm to figure out how to get that information. He or she might need the assistance of an accountant, a financial planner, or an attorney, before feeling confident enough to evaluate offers or to have enough background information to make decisions. I 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 each understands where the other is coming from, and why he or she believes the proposed result is right. The mediator can reassure participants that they don't have to agree with each other — but understanding why they disagree can be very valuable in helping the mediator in his or her task.

Putting It into Practice

Neutrality is the goal. But how is it possible to be on both people's sides when they are in a conflict? A few examples will illustrate why stifling the natural response to rush to judgment can help the mediator help his or her clients.

Case Study #1: The Adulterer

In one case I handled, spouses Anice and Marshall came to me for divorce mediation. (Names and identifying information have been altered to protect confidentiality.) 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, who was at that time seeing another woman, had had other affairs in the past but had always returned to her. “How do I know that this time you are serious?” she asked him in our mediation session. “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, further confusing Anice. “Why did you buy this house with me if you wanted to get out of the relationship?” she asked. The couple had greatly disparate incomes, and although Anice had been the motivating force behind buying their new 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 that Marshall was, at best, a lousy toad. Anice 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 had 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 that felt stagnant to him, and from which he could no longer derive any sense of intimacy or romance. He was very grateful to his wife for all the love and support he had received from her, and for the achievements he was able to accomplish 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 Anice had been a loving wife. But now he felt stifled by the relationship and trapped by his responsibilities to Anice, who was not able to earn as much money as he could. Although he felt platonic love and respect for his wife, he had a new girlfriend. For Marshall, the 12-year marriage had evolved into simply a friendship.

After hearing Marshall, I could see his side of the situation, as well as Anice's. He saw her as a woman with no self-respect, who would live with him even though he rejected her. In truth, I felt great empathy for both Anice and Marshall. 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 improved, they would be ready to negotiate the fairest way for them to divide their house and their possessions.

Anice had to come to terms with the reality that Marshall truly wanted a divorce. When I helped her to accept this, she began to be able to think clearly about her future. In mediation, she negotiated 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. They each had an independent attorney review the agreement, and they were done.

Case Study #2: The Lesbian

In one case I handled, the marriage was breaking up because the wife had recently come out as a lesbian. I empathized with the husband, Allen, who, in his early 50s, 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 did not 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 did not 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 also feel that he was getting an opportunity to embark on a new life — one that might hold some promise, excitement, and even happiness not present in his 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 about her sexuality earlier? The mediator's challenge is always to attempt to see both sides, and then help the clients to better understand each other.

Case Study #3: Going Out for a Paper

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 wife Helen with two young children. I could imagine her anguish, and the children's fear, so I had to work hard not to pre-judge Brad for his rash behavior.

During our sessions, Helen was charming and engaging, but she dominated the conversation and never allowed Brad to speak. I came to understand that Brad did the best he could. His own frustration and pain, which for him felt as awful as his disappearance had felt to Helen, drove him to do this to her.

Once I began to have sympathy and understanding for Brad, I was able to work on equalizing the dialogue in mediation. I had to find a way to get Helen to stop talking and listen to Brad, and I did so by consciously making space for him to inject his thoughts into the conversation. I asked them if they could agree not to interrupt each other; and when Helen did interrupt, I reminded her of her agreement, and assured her that I also wanted to hear her thoughts — but that now it was Brad's turn.

Over the course of a few sessions, Brad began to talk more about his connection with his children, the financial strain he was experiencing and his sorrow about having left their beautiful home. Helen came to understand that they would both have to experience lifestyle changes, now that they were in two homes. They successfully negotiated a 50-50 parenting schedule, a time frame for selling the house, and a structure for Helen to receive maintenance — and then for it to end — with plans that she would return to her prior successful career.

Conclusion

Emotions run high where the impetus for the break-up of the marriage involves situations such as those illustrated above — where one party has a new lover, has revealed that the basis for the marriage was false, or has suddenly walked out without warning. The “right” spouse might find that the new identity as a wronged person becomes intensely compelling and attractive. As people restructure their lives, all kinds of complex emotions come into play. As they navigate through the maze of changes they must now face, the last thing many divorcing parties may want to hear is that their spouse's position has some validity. That is one of the appeals of the traditional adversarial system: When hurt, angry and shaken up, whose first reaction isn't to hire an experienced warrior, who will tell them they alone are right and that their evil spouse should make amends — usually monetary — to avenge their wrongs?

And that is probably the crux of mediator neutrality, and of the difference in outlook between a mediator and a litigator. Most people are trying the best they can to make their way through this life, and they try not to hurt the people they love, or have loved. They do their best. But we are all imperfect creatures, and don't always succeed. When people are hurt, they lash out — and the other party, perhaps not knowing how deeply their partner has been hurt, may not realize where that anger is coming from. The mediator, through neutral understanding, can often help people to forgive themselves and each other. That forgiveness will help them to move forward into their new lives, post-divorce.