By Abby Tolchinsky and Ellie Wertheim
April 9, 2013
A mediator we know touches the back of his chair mindfully and pauses for a long moment before sitting down and beginning each session. This form of mini-prayer serves as a reminder that the negotiations about to commence are sacred; to acknowledge that he is about to embark on the intimate work of facilitating a confidential negotiation. Indeed, in all mediations, each party brings to the sessions a universal yet unique set of emotions, hopes and challenges.
Mediators work within the micro-world of the parties before them, helping to craft individualized resolutions to each idiosyncratic case. All the while, the mediator works to bring in aspects of the outside world, such as the law, the tax code and other financial factors, and child development research, in order to help illuminate the reality of the particular family. It is with this background that we regard studies of the varying ways in which people negotiate. This methodology of conflict resolution ideally provides a safe space for reflection and decision-making that resonates with each unique fact pattern, often diverging in matters large and small from a strictly court-driven result. That is, generalities are anathema to mediation.
Much has been written and debated in recent weeks about Lean In, Sheryl Sandberg’s book of advice for professional women. The cultural discussion, both critical and laudatory, identifies her message as imploring women to self-promote and be less compromising in their demands for equality and success. This manifesto is rooted in studies and anecdotes that demonstrate the paradox of women on the fast track: that is, driven by evidence that they are disliked for being too smart, too successful and too competent, women temper their professional goals. Women are expected to be nurturing and nice, and are judged harshly for behavior applauded in their male counterparts.1 Moreover, says Sandberg, women should not compromise in the domestic arena when structuring a family life.
For the purposes of this column, we as mediators glean from Sandberg a good many salient points that apply not just to the male-female dynamic, but also to maintaining balance in negotiations more generally. The challenge for effective mediation is to walk the line between recognizing patterns, but containing them for what they are: an initial glimpse into the dynamic of the parties and their underlying concerns. Beyond that gloss, the mediator’s role is to bring understanding, as well as compassion, for the concerns of the parties before them—to meet each individual where they are. Experience without presumption, without judgment, is the basis of the neutral facilitator’s work.
VOICE IN THE ROOM
Contrary to Sandberg’s findings, in our experience as mediators, we have not observed women negotiating in any consistent pattern. They do not settle for less than the law may provide, because they wish to “keep the peace” and/or “be liked.” They do not, as a cohort, negotiate in a more communal manner than their male counterparts. Rather, each party brings to bear a much more complex history, both as individuals and in the relationship. Part of what it means to be neutral is not to make assumptions about how people fit into familiar fact patterns. The inherent challenge is to look at each couple and individual with fresh eyes while still bringing in the wisdom of professional experience. Particularly post-recession, when people are using ingenuity to explore earning power and shifting roles in the home, the use of “usually” and “typically” is increasingly obsolete.
Divorce negotiations tend to bring out the most visceral needs and fears and existential examination of one’s life and future. It could very well be the case that divorce is the exception to Sandberg’s rule of women negotiating with the restraints of likability—it is too fundamental an upheaval of all aspects of day-to-day life. Moreover, as divorce mediators, we fully expect high levels of emotion and conflict. It is the case in which one or both of the parties is too readily agreeable that we take a step back from making decisions.
The mediator at such moments will shift to a discussion of whether each party is capable of having a voice in the room or whether they feel compelled, perhaps, to be a peacemaker and acquiesce to the other’s needs. Such a conciliatory approach may serve as a red flag for the mediator indicating that a party would benefit from having an attorney at their side during the negotiations, or, at a minimum, to consult with between sessions. A firm grasp of alternative processes, rights and obligations is imperative.
While Sandberg focuses on the land mines women face as they navigate the working world, we see all manner of imbalances in our practice. It is the mediator’s job to recognize the dynamic and to help the parties recalibrate the power in the negotiations. Has one party always managed the money, while the other is in the dark when it comes to family finances? What of one spouse who has been the primary parent and knows the intricate details of the children’s routines, from friendships to sports schedule to pediatricians? Or, consider the spouse who wants to divorce and the other, who cancels mediation sessions regularly while struggling through an emotional shock. Is there one spouse who wishes to retain some semblance of their married lives and the other who embraces the possibilities for change the future will bring? Each of these conflict dynamics is understandable and familiar and yet must be brought into the open and addressed—sometimes recalibrating with a frank conversation, sometimes with the help of an attorney or other expert’s input.
Another dimension in the role of the mediators, then, is to ensure that parties do not automatically and unwittingly codify roles and past patterns. Instead, it may behoove them, at a minimum to reconsider “how it has always worked.” Others may aspire to re-wire previously ingrained patterns. Thus, as mediators, recognizing entrenched roles and making them transparent in the conversation invites parties to contemplate shifting. This may entail small steps, such as analyzing the options for a change of work schedule, in order to be available for a child in a different manner than before. The mediation session is a neutral forum for having the conversation without judgment.
While Sandberg may be recalling her own inclination to hide her academic success from her peers or her initial willingness to accept the first offer on the table from Mark Zuckerberg at Facebook, so too do we observe parents negotiating to take on the role of SuperParent. Time and again, it is when we reality test the actual hours and responsibilities a divorcing parent is asking for, that the invitation for time without the children can be entertained. Similarly, the determination to retain the marital home may, upon coming to reflect on the monthly budget and cash needs, give way to some other housing solution. How parties in mediation imagine life going forward, wherever they compromise and arrive at a settlement, ought to reflect the reality they each face as well as deep values regarding each one’s financial and emotional priorities; and, finally, an assessment of the reality and values of the other.
In Lean In, Sandberg ascribes to women’s negotiating style a menu of techniques that combine likability and assertiveness. Women, she says, need to be nice while being relentless in pursuit of their goals. This involves, “invoking common interests, emphasizing larger goals, and approaching the negotiation as solving a problem, as opposed to taking a critical stance.”2 All resonate in the understanding-based model of mediation. That is to say, in an arena of equal power, no one arrives at “yes” without an opportunity to fully consider every issue, its implication on the global settlement, the best alternative result in another forum, and, ultimately, appreciating the other’s perspectives and needs such that viable offers are on the table. Seeking common interests and employing creative problem-solving are tools for all effective negotiations.
According to Sandberg, communal values, invoked as mutual interests rather than individual positions, are recommended for women negotiating the marketplace. Similarly in mediation, common values loosen the positions of the parties. Both may wish to be financially independent, both may wish to enjoy quality parenting time, and indeed, both may wish to provide college funding for their children’s futures. Ultimately, fair and balanced negotiations require compromise—compromise without appearing weak or positional.
Ultimately, what Sandberg is counseling women to bring to their career goals—full effort coupled with social sensitivity; fully attuned to how one is received and heard—is very much akin to what we as mediators seek to achieve: a neutral voice reframing and reflecting the goals and values of the parties before us.
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.
1. Sheryl Sandberg, Lean In 40 (2013).
2. Sandberg, at 48.