In a recent post, I discussed team building as essential to carrying out many mediated agreements. But sometimes it’s not in the cards. Simply, the parties haven’t reached the point (or may never reach the point) where they can sit down at the same table physically or via Skype or Facetime and hammer out an agreement.
The toxicity may be too high. Distrust astronomical. Positions entrenched. Or one party may be so certain of a favorable judicial ruling that she outright dismisses any interest in mediation. What to do?
Mediators can’t perform magic. Nor produce miracles. Or predict the future. What we can do in divorce and custody cases is encourage the parents’ to shift focus from what they want to what their children need. Or, in elder and adult family matters, we can encourage the adult children to downplay unresolved jealousies and long-standing distrust to the pressing concerns of their aging parents.
In some cases, mediators may inform parties that their case is not ‘ripe’ for mediation. Simply put, the parties may be emotionally or temperamentally not ready to discuss their claims, even in the presence of a neutral third party.
In these situations parties should seek outside help. For example, a family therapist might encourage estranged parents to understand the impact of their impending separation on their children, or grasp how their competition for visitation time can result in their children harboring divided loyalties. A geriatric social worker can assess the condition of an infirm parent so the adult children can learn what their parent(s)’ current and future needs are. It may be helpful for a financial planner or a tax attorney to explain to warring heirs the legal and tax consequences of their bickering over how to interpret their parents’ will.
We call this ‘reality testing.’ That is, measuring a party’s claims or interests against what’s likely to happen in the real world, if say, their case went to litigation, or how their dispute will affect other family members.
Reality is like a hole in the ground: Parties can either walk blindly into it, learn the consequences before taking the next step, or together work out an alternative route that gets them to a mutually agreeable destination.
Beyond Dispute Associates
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