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Workplace Mediation: Do Emotions Have a Place at the Office?

Managers have a special role in the office—the “big” bosses rely on them to make sure everyone is working at their highest capacity.  By their nature, managers are problem-solvers—not only do they know and understand the work being done, they also know how to help employees resolve knotty technical problems, or they know where to find resources that will help in resolution.  But sometimes, management’s expertise in the technical area is not matched by their people skills, particularly when strong emotions are involved.

If employee-employee conflict is severe enough, the pressure can cause normally calm employees to erupt in emotional outbursts, severely disrupting the workday.  Even one high emotional outburst can have a ripple effect, affecting office morale for weeks.  Co-workers can begin to take sides, leading disputing employees to feel supported as they engage in more hostile behavior to each other.  Management’s attempts to resolve the dispute can cause the employees in conflict to feel that management is taking sides, and the deck is stacked against them. In the most severe situations, an employee who is in a dispute against another employee, and who believes that she has no way to resolve the dispute, may abruptly resign her position.  Alternatively, management may have to terminate one or both employees, believing that there is no other way to salvage a positive working environment.

Managers often think about calling in someone from the Human Resources department to cope with these severe inter-personal disputes.  But most employees reject the idea of bringing “HR” in to facilitate discussions or to air the office’s “dirty laundry.”  Both managers and employees are understandably worried about what might get written down in the personnel files.  Will HR find that the manager is not competent to deal with workplace conflict?  Will HR’s opinions go into the employee’s personnel file to be addressed at their annual evaluation?  Will calling HR initiate a formal inquiry?

An outside mediator can often make a difference when emotions are running high.  An experienced, trained mediator knows how to work with high emotions.  She can listen with complete attention and compassion to each employee’s entire “story.”  She can reframe inflammatory language so that the other side is able to hear the message clearly.  The mediator can help each side better understand the other side’s perspective.  She can guide employees through collaborative problem-solving to help them develop options for resolving the current conflict and defusing future conflict. She will focus on positive incremental efforts that both employees can make to start re-building a productive working relationship.  The mediator can function as a coach to help guide the re-building effort.  And when necessary, a mediator can direct employees to counseling if they need additional support while re-building their work environment.

A good manager should know a good mediator for those rare occasions when high emotions in the workplace are best handled by a professional peacemaker.

Custody and Co-parenting: Totally Different Animals

When clients come to me to help them mediate custody, one of the first things we address is the term “custody.”  For most people, the word custody puts conjures up images of people being arrested for something and being put into custody.  In a word, criminal law.  The term custody implies that the children are assigned to the physical control of one parent and that one parent also makes most of the decisions about the children.  It also implies that parents will be competitors when deciding how to share time with the children, after all, only one person can have custody at a time.

But how children’s time is divided between parents is not criminal – while it is a legal matter, it is civil, not criminal.  And in the best circumstances, the parents themselves, with the help of a mediator if necessary, jointly design their own parenting plan taking their lives and their children’s lives into account, without a court telling them what to do.  A judge may still have to review and approve a parenting plan, but in most cases they are only too glad to allow the parents to decide their own parenting plan.

Many states have changed the term “child custody” in their laws into the less threatening and more accurate term –“co-parenting.”  And the term for how parents share parenting of their children is a “parenting plan.”

When parents are using a parenting plan that they have jointly designed, they jointly parent their children—that is, the children physically divide their time between both parents’ homes, and the parents jointly make decisions about the children.  Occasionally, parents choose to allow the children to remain in the home while the parents take turns moving in and out.  One term for that is “nesting.”  For most parents, nesting is a temporary measure—they do it for a few months until the children are more comfortable with the idea of the parents separating—and the parents ultimately secure their own housing with enough room for the children to sleep in both homes.

The best co-parenting of children is flexible – parents agree on how to divide the children’s time with them, but they make allowances for special circumstances.  They give additional time to each other, when, for example, the grandparents are in town.  If the parents wish to go out at night or away for a weekend, they offer the other parent that time with the children before calling a babysitter or one of their parents to watch the children.

If the children normally receive calls from the non-hosting parent at a certain time in the evening, when the children are unavailable for the call, the hosting parent makes sure the children call the non-hosting parent as soon as they are available.  They do this even if is inconvenient, because they know that children do best when they have as much regular contact as possible with both parents.  And they are putting their children’s welfare before their own.

If parents can work cooperatively with each other, even when they disagree about certain parenting issues, this is a gift to the children.  The children see that the parents are not fighting about them, and that even if parents don’t agree, they can work out disagreements without using the children as messengers, or worse, pawns.  When the children themselves become parents, they will have role models on which they can base their own parenting.  And if, God forbid, they should divorce, they will be able to co-parent beautifully and the word “custody” won’t even enter their minds.

The Mediation Process

New clients are almost always nervous about what will happen in mediation. They worry that the mediator will be deciding their case, they worry that the mediator will say one person is right and the other wrong, and they worry that the whole thing will be a waste of time and money.

Prior to mediation, I invite clients to meet with me for a 30 minute consultation at no cost so I can answer any questions and explain how mediation works. My clients learn that the goal of mediation is to assist them in coming to a fully-informed, durable agreement based on their needs and interests.

Fully-informed means that all relevant information is exchanged before or during the mediation so that everyone has the same information as a basis for decision-making. Durable agreements happen when my clients are satisfied that they have achieved a shared understanding of their dispute. The agreement is only final when everyone has signed on the dotted line.

My clients and I discuss how they will get to agreement. They each have a chance to make an uninterrupted opening statement. I summarize each opening statement briefly. I may also draw out areas where my clients already agree, or help them flesh out a list of issues they will be discussing. I help them prioritize the issues list, and then I support them using interest-based negotiation to find a way to common ground.

Solutions often bubble to the surface naturally and my clients’ initial tension eases. They sometimes crack a wry joke or two as they realize that they are moving towards agreement. I help my clients work out the details of their agreement–we check the list of issues to make sure nothing is left out, then we finalize the agreement, give everyone a chance to clarify, or add important details, then we are done.

This process takes time, sometimes more than one session of mediation. If everyone agrees, we can break the mediation up into chunks, half a day at a time, or we can go as long as everyone feels we are making progress. No one should feel pressured into agreeing to something they will regret later and taking the time that is needed is one way to make sure that doesn’t happen.

I want my clients to look back on their mediation as a difficult situation that they resolved as best as they could, without further harming business or family relationships. Ideally, those relationships improved as a result of mediation, and my clients acquired tools to help them with future conflict.

Contact me if you would like to remember your mediation in the same way.

Domestic violence survivors can now choose mediation

Montana legislators and Governor Steve Bullock chose to empower survivors of domestic violence when HB 555 was respectively passed and then signed, allowing survivors to “opt in” to mediation for family law disputes, instead of being barred by Montana’s laws. The prior law was paternalistic, assuming that survivors of domestic violence were incapable of making fully-informed voluntary decisions about their property and children due to prior abuse. But those of us who have mediated such cases successfully have found that, with the appropriate support, some survivors are able and ready to make important decisions about their future and the future of their children. That support can include having advocates present, or using telephone or online mediation, sometimes called ODR, so that the parties are separated by physical distance. Advocates can include pastors, counselors, and other family members. Montana lawmakers made the right decision to put the choice of mediation back into the hands of survivors. Mediation that works can be the first step for them in regaining control over their lives.

Legal Separation or Divorce – Which is better?

When clients contact me to mediate a legal separation, they are often unclear about the difference between legal separation and divorce.  In fact, they sometimes say, “we are already legally separated but we don’t agree about how to divide our 401(k) accounts,” or “we can’t agree who is going to pay Junior’s orthodontist bill.”  They are surprised to learn that living separately is different than legal separation, and that, in reality, legal separation is only one step away from divorce.

In Montana, legal separation means you go through the same steps as in a legal divorce, but the final document is a decree of legal separation, as opposed to a decree of dissolution of marriage.  After six months, either one of the former spouses can file with the court to get a divorce decree.

“Well, then,” say my clients, “why should we do one instead of the other if that is the only difference?” My question to them is “what do you want out of the final process?”  Most often, they say they are not yet sure about a divorce but they can’t continue living together as they have been.  So then, we calmly talk about all of the pieces that make up the legal separation process, separation of assets and debts, a plan for shared parenting, child support, spousal support, etc., and how they might work under the different scenarios.

The end result varies according to what they really want to do.  Some couples decide only to come to agreement about paying bills without a court process, others decide to divorce, and others go ahead and do a legal separation.  That is the beauty of family mediation – you get to decide what you want to do, and when you want to do it with a fuller understanding of the effect on your family and your finances.  That is how mediation supports self-determination that is fully informed.

Welcome: Middle Ground Solutions

With the launching of this website, I am taking my services to a broader public.  I am also creating a vision of a more empowered and knowledgeable consumer – someone who knows the difference between using the courts to resolve conflict and using mediation to resolve conflict.

In highly emotional situations, it is difficult to make the best decisions for one’s family and one’s business.  Using lawyers and the courts to resolve conflicts often sidelines feelings, causing more volatility and more extreme emotions.  A trained, experienced mediator includes strong feelings in the decision-making process, but without letting them drive the process.

It is often said that when you go to court, even the winner loses.  It is more accurate to say that going to court ignores the broader aspects of people’s lives.  Courtrooms and lawyers have a short and narrow horizon — it stretches only as far as the next deadline, the next required action in the court’s scheduling order, or the next case on the docket.  People’s lives are simply bigger than the container imposed by the legal process.  Ignoring that fact can permanently sever important relations between family members and business associates.  I am hopeful that an empowered and knowledgeable consumer will make a better choice.