[Note to the reader: In 2010 I wrote much of what I’ve put into this particular post below, with the rather odd exception of my having failed to include “validation” as one of those “feelings” I was so often encountering as a family court mediator (and, most recently, as an early neutral evaluator). However, over the years it has most often been validation which I have allowed to elude me, and which has created a significant hurdle in helping the parties reach a successful resolution of their litigation. And so I thought it might be timely to revisit this particular subject, just to see if (and how) I had allowed my family court mediation practice to morph into its most current form. Let me quickly add that for the many of us who have attended “mediation school” while becoming a certified family court mediator, our instructors use the word and the term, “validation”, within the first 2 hours of an intensive 40-hour course. So let’s just start there.]
“Validation” is defined as “the recognition or affirmation that a person or their feelings or opinions are valid or worthwhile”. And …
“Mediation is the art of recovery.” (From “Family Court Mediation Training Program”)
Having practiced family law for over 44 years, I am well now into my 9th year as a fulltime family court mediator and an early neutral evaluator, and I have determined that, on many levels, alternative dispute resolution (either as a mediator or an early neutral evaluator) has presented me with my greatest professional challenge…and here’s why:
I retired from the South Carolina family court bench at the end of December, 2008, and in January, 2009, I “transitioned” into my mediation practice, convinced that I had enough experience in this area immediately to become a natural-born mediator. I just knew I could settle every case by sheer force of will and experience. Wrong…and big mistake.
Mediation required me – no, it forced me – to become so much more enmeshed with the feelings of the parties than I had ever been required to do in my professional past, either as a family law practitioner or, most definitely, as a family court judge.
In hindsight, it didn’t take me long to realize, understand, and then embrace the notion, that the feelings of the parties who participated in a family court mediation not only mattered, but formed the virtual engine which drove the entire process forward. These feelings included, then and now, and most often all at the same moment in time – anger, bitterness, hurt, mistrust, frustration, helplessness, hopelessness, sadness, anxiety, loss, confusion, dependency….and a lack of validation.
Looking closely at this list of all these “emotional ills”, why would “validation” matter so much to me as a mediator (and more currently, as an early neutral evaluator)? After all, it just seemed to me that if spouses or parents were entering the mediation process after having commenced family court litigation, why should I, as the mediator, be at all concerned about “validating” either of these parties’ “feelings” regarding whatever had driven them into family court litigation in the first place – and wasn’t that something which should have already been “processed” by the other party and the parties’ respective attorneys? And would it ever have been appropriate for me, as the mediator, to openly express my “opinion” – in a confidential setting – that I could “understand, or even empathize with” either party? At what point would or could I, as a mediator, come very close to crossing those ethical boundaries which separated my being a pure neutral into someone who openly expressed that either of these participating parties had feelings or opinions (about the other spouse or parent) which were “valid and worthwhile”? If all words matter in a mediation, wouldn’t that particular party naturally assume that I was taking their side? Well, yes, they most probably would.
So, as the mediator, how then was I supposed to deal with this particular “feeling” coming at me like a wave – this lack of validation?
By now one would think (well, at least I should think) that I would have acquired some intuitive sense of the nuances of the parties’ feelings which they always bring to the mediation session and now to our early neutral (ENE) evaluations. However, “validation” is tricky; because if “words (truly do) matter” during a family court mediation, then as soon as I acknowledge to a particular party – one side or the other – that I “understand” what they are going through, and that “I can certainly empathize” with them (in other words, validate that party’s position), wouldn’t I be getting dangerously close to crossing the ethical line as the neutral?
No, I don’t think so.
Every person old enough to experience emotions wants to believe that they are worthwhile and that what they bring out of themselves – and express to others – often at great personal pain, matters. And so if we begin to try and understand that a person’s thoughts, and feelings, and opinions, and words matter, then the elegance of understanding the urgency that person feels to be validated by anyone becomes crystal clear.
I cannot otherwise find in my professional experience anything else approaching the level of emotional pain that all spouses or parents experience by entering into family court litigation, because at that moment in their lives not only are they faced with the stark recognition of their own self-perceived failures regarding the choices they made in their marriages or as a parent, but they are also – perhaps for the first time in their adult lives – at the complete mercy of strangers (e.g., judges, attorneys, guardians ad litem, therapists, counselors, lay witnesses, expert witnesses, etc.) in deciding their future and, often devastatingly, their children’s future.
In my struggles over the years to address my own “Hobson’s choice” on this matter, I came to a realization that I could ethically frame my response to almost all of the “validation issues” in subtle and varying – and hopefully, impactful – ways; and I began to share my sense of empathy with these words –
“I can absolutely understand what you’re telling me and I am so truly sorry that you’re having to tell me – a complete stranger to you – what you’ve been through. It must be very painful for you to have to share this with me. And I want you to know that you matter to me, and that everything you tell me is important to me. … But please try and understand that I’m here today as a complete neutral, where my job is to do whatever I am able to do to help your (wife/husband/other parent/etc.) and you work through all of this pain and emotion – and all of these many feelings that you’re sharing with me – so that both of you will be able to have control over how you and your family can move forward from here. But I also have an ethical responsibility to be candid with you and tell you that, unfortunately, it is simply not the role or responsibility of a family court judge to have or share – or empathize with – any of these feelings that you’re sharing with me…and the only true obligations of your judge are (1) to give both parties a fair hearing and then (2) bring an end to your litigation based on how your judge heard your case. And I am sincere when I tell you that I could never understand why anyone would want to leave their future up to complete strangers. So please, with your knowing that, try and work with me today in our finding some reasonable way forward. Can we at least agree to try to do that today?”
Thank you for your patience in reading this post, and let me begin to conclude it by stating that in a mediation, and especially in a family court mediation, we all play a role in trying to successfully navigate through these “feelings” – the feelings of the parties, and the feelings of the parties’ attorneys as well.
So to the attorneys who are participating in the mediation. A mediation is not a family court hearing which is intended to be conducted (started and ended) within a finite period of time. Please don’t arrive leaving.
If you understand that the trial of a family court case is also a form of “dispute resolution” absent any and all “outcome certainties”, then you should realize that a successful mediation should be a family law attorney’s “best friend”.
I would also urge every family law attorney who participates in mediation to remember these words: Mediation is a process which will have a point-of-beginning, but which will end when it is supposed to end.
Please give your mediator time to work with your clients to discover whether your client’s feelings continue to create a wall or barrier which prevents a reasoned and reasonable discussion affecting the resolution of his or her case. Your mediator will know, often instinctively, when it is time to try and break through this wall.
And so with that, I wish us all good luck in this difficult profession we have chosen.