Mending Fences
Mending Fences
Finding Your Way (again): Strategies for Preserving Progress When You Change Course
Is your dispute resolution stuck? Is your divorce mediation stalled? Your collaborative divorce just not moving? As your hosts for this episode of Mending Fences, Patrice Brymner and Jen Hawthorne, we’ll guide you on how to breathe new life into stalled conflict resolution processes. We’ll share practical advice, from introducing a lawyer to mediation to using a mediator as a shuttle between parties, so you're not doomed to starting over from scratch. Amidst conflict, it's easy to be overwhelmed by a multitude of dispute resolution options. We'll help you navigate through these options - mediation, collaboration, lawyer-to-lawyer negotiations, conciliation, and arbitration - by providing guidance tailored to your unique situation.
We understand the weight and significance of progress in resolving conflicts. That's why we emphasize the importance of continuous communication, even when progress seems snail-paced. Discover strategies that can better ensure the preservation of progress in communication, even as you switch processes. We'll reveal how to hold on to made agreements and improved statuses in your dialogue, even if it doesn’t feel like progress is being made. This episode is a compass, guiding you through the labyrinth of conflict resolution options, keeping you steady, and aiding you in finding the most effective solutions.
Welcome to Mending Fences, a podcast about effective ways to communicate and live with differences. I'm Patrice Bremener.
Speaker 2:And I'm Jen Hawthorne. We're both family law mediators and collaborative law attorneys, but our conversations go well beyond family law. We explore the personal, interpersonal, legal and cultural impact of conflict. Hi and welcome to Mending Fences. I'm Jen Hawthorne and, as always, I'm joined today by Patrice Bremener. Hi, Jen, Hi Patrice, and we are going to talk today about what should you do and what should you be thinking about if you've picked a process to resolve your conflict and again, it'll be framed in the context of divorce, mostly just because that is what Patrice and I do, but it can be applied to any conflict.
Speaker 2:So what do you do if you've picked a process and it's either stalled and you're not making any more progress, or you have reached some sort of impasse that you don't think this process is going to be able to get you through? Do you just give up? And, of course, the first thing that I would say is no. There are so many different things that you could do, depending on what process you're at or you're in. What is causing the stall, what's causing the impasse? Who are the professionals you're working with and how can you, or can you find a way to tweak the process you're in? Can you move to another process? How can you minimize the loss that you feel so that it doesn't feel like you're starting over?
Speaker 1:I, just as I was listening, thought this is good advice. For even a dispute that's not a legal dispute, like if you're just in a conflict with a family member, or whatever you do reach a point where you're thinking, wow, this isn't working, what can I do differently, how can I change this up? And yet, at the same time, I was also thinking sometimes and I'll use mediation as an example sometimes it's not that the process has stopped working.
Speaker 1:You might just be going through some hard conversations and maybe you need to stick with it, keep talking and get through it, and so it's hard I think it'll be hard for us in this conversation to be able to say definitively here's when you know it's time to look at other options. But maybe the way to frame that, jen, is to say if you're frustrated with the way things are going and it feels like the progress should be different or the timeline should be different, talk to your dispute resolution professionals and say you know what's going on here and what are our options. And that might be talk to your mediator, or talk to if you have an attorney that you're working with, talk to them.
Speaker 2:Right and even bringing it back to if you have a dispute that is not legal in nature, that you feel like is repeated and isn't resolving, and you're really feeling frustrated and butting your head.
Speaker 2:I think taking Patrice's suggestion there about bringing it to the forefront like raising your frustration, making sure it's known, is a good step in any conflict. So, regardless of who you're working with or who you're talking to, if you feel like you've really reached a limitation in what you can do or say, make sure you're vulnerable enough or make yourself vulnerable enough to say I'm frustrated, this isn't working for me. We need to do something different because if you haven't yet gotten a professional involved in helping you resolve a conflict, even a non legal conflict, there are lots of people like therapists and counselors and mediators who do things that are not involved in the legal process, who can help you through a conflict. So a starting place is voicing that frustration and voicing that it's not working for you, even if it's working for the other participants in a process that's not working for you. Stop and make sure people know that.
Speaker 1:I think that's really good advice, Jen, and I'm just going to temper that by saying you 'll get better results probably if you can voice that without blaming Absolutely. So yeah, and so it can just be, and it can be. I think we've talked about this in so many other contexts. The power of curiosity drives can drive, in a healthy way, A lot of these things to say. I wonder what would happen if we did this a different way. I wonder what would happen if we came at this with a different perspective or using a different set of skills. Right, Exactly.
Speaker 2:And so, yeah, all right, like sort of a next step in my mind, once you've raised the issue that it's not working, is having that conversation with someone about what your options are. And I think maybe here, patrice, is where we want to start giving some concrete examples of what we're talking about. Absolutely yeah. So if you're in mediation and it's, you know, a very Traditional basic mediation, it's you, the person you're in a conflict with, and the mediator, raise this with both of them at the same time and Hopefully you are working with a professional mediator who is able to say okay, so really, here are your options. You can move to a different process. We can bring more professionals into this process. We could, you could stop and do something completely different with different professionals and laying that out. So when I'm working with clients and I'm the mediator and someone says this process isn't working for me, the things that I'll talk through with them. As, first of all I want to understand is the professional why, like, what is it that they're having a hard time with? Because sometimes people are able to voice. You know, I don't feel like I have all the information I need because I don't have my lawyer sitting in the room. So maybe we bring the lawyer into the room and we tweak the process that way. I sometimes people will say you know, I don't feel like I can talk in front of my spouse, partner, co-parent, whoever it is Okay. So maybe we try separating the two of you and at first I shuttle back and forth. Maybe that's all the tweak that we need. But some folks might say I, I kind of have regrets that I didn't hire a mental health professional as the neutral and as a mediator who is not a mental health professional, it's my responsibility to say okay, so let me recommend some people that you could talk to. And again, there's choices Do you want to bring that person in to co-mediate with me or Do you need me to step back from the process and let you move forward with a different process with different professionals?
Speaker 2:Sometimes it's bringing other experts into the room. If someone's having a hard time understanding the financial aspect of something, maybe they need clarification or teaching or coaching or whatever word that you want to use on how to understand the information before them in terms of numbers and things like that. So we might bring in someone who's a financial neutral. There's, as Patrice and I were talking about how to record this podcast. One of the things that we were talking about is that it's so complicated to try to explain that just because you feel like a process isn't working, it doesn't mean that you're Doomed or that your case is going to fail or that you're not going to get to an agreement. But it's also complicated for us to try to explain all of the different options, because it is so dependent on who's sitting in the room.
Speaker 2:What professionals have already been involved, what are the clients like? So, if you're a client listening to this, you know what. What needs do you have? What personality traits do you and the person you're involved in this conflict with have collectively? And how can, as professionals, how can we build an approach for you that best meets all of those needs?
Speaker 1:Yeah, and I think it goes to and I know we've talked about this before, but it goes back to gathering information before you choose a process to see, like what might be the best Process. And sometimes I think folks and I don't I find no fault with this at all I think it makes a lot of sense. People have heard about mediation and so it's maybe more familiar than some other Options, and there's also a perception that mediation is maybe the least expensive choice and so, specifically with a divorce, that might be true Overall right, and so people might. That might be an initial motivation, nothing wrong with that. But I think people will unknowingly kind of do themselves a disservice about not learning more about what all the options are. So they aren't necessarily Making the choice bet based on what's the best fit for us in our conflict style or our communication style or given the complexity of our issues or whatever.
Speaker 1:And the other piece is that we don't know. So as professionals, we don't know you, and so when we're making Recommendations in the beginning, it's hard. It's hard to, it's hard to steer somebody towards. You know you're gonna want a collaborative process or you're gonna want mediation or no. You need to litigate. I mean there are some things, some big things that are red flags that will, that will move our minds in one direction or another. But we can't know everything at the beginning and sometimes it's the professional saying at some point like this isn't working. We can keep meeting, like in mediation, we can keep meeting every month or two, but maybe it's time for you to go and consult lawyers and then come back with new information about how this is gonna fit into your overall agreement. Or maybe you need to go try on a parenting plan for a while and experiment, take a couple of months off and then come back. And the good news is that the processes we use outside of court are very flexible.
Speaker 2:Yes, I totally agree with that. With the sort of asterisks up there of provided the professionals, the processes are very flexible, provided the professionals are willing to be flexible.
Speaker 1:Yes, and I know we've kind of slipped very specifically now into the divorce stuff, but a lot of what we're saying really can apply to other sorts of disputes. And so you've talked about mediation, and mediation can include lawyers in the room or not, so people can go consult with lawyers and then come back Sometimes and I think it's rare, but sometimes and so we're talking about we're in Massachusetts and so this is a jurisdiction where an out of court, where all out of court dispute resolution is voluntary, right. So we're talking about mediators, no requirement to try anything, right. And so here there's kind of this like you either file your case with the court at the beginning and have kind of a you know that timeline and that framework, or you don't file anything until the very end, when you're all done and you've already been through this process. So sometimes conversations about whether to file something with the court to get dates on a calendar, sometimes it's helpful, sometimes it's really harmful, but it's a conversation to have Agreed. We haven't talked about collaborative.
Speaker 2:And so, I think, being really transparent with our listeners, I think sometimes people can have a more difficult. It's more challenging to admit that a collaborative case isn't working, both for professionals and for the clients involved, because there is a higher initial cost, usually because once you've started the process, the team has met the Clients have met with folks usually more than one professional for successive meetings before people start realizing that it's not working. It's rare that after a first collaborative session you might realize it's not going to work, and so there's more usually both time and money invested in the collaborative process than there is in mediation. When you're reaching the point where you realize it's not going to work, and I think that can feel frustrating sometimes to clients because there is in a true full collaborative case, there's a process agreement that says that those attorneys won't go to court, which means that you don't have like coming out of mediation. You usually usually have all of the process choices available to you and you can continue using the same professionals. If you've already hired attorneys, provided those attorneys litigate In collaborative, you might feel stuck as a client and say, well, if I back away now, I'm losing everything.
Speaker 2:But that one isn't true.
Speaker 2:And two even in the rare cases where people actually move to litigation counsel and start the court process, I don't think clients coming out of a collaborative process think that they have wasted their time altogether or have spent unnecessary money because you have some of the documentation and things put together that you need to bring to a litigation attorney.
Speaker 2:The collaborative attorneys can speak to the litigation attorney and just kind of say like here's where we got, here's what happened, here's what I think was a challenge in this case, and there is emotional healing. That happens when you are sitting in the same room, ideally with someone who you are in conflict with. You're hearing them, you're getting to understand how they're thinking and where their ideas are coming from, and that has a value, even if it doesn't result in a full agreement. But short of going to litigation coming out of collaborative, there are still options. Sometimes people can even go back to mediation and that can work for them. Sometimes it can be like we're not perfect human beings as professionals. Sometimes it can be the professionals actually getting in the way of the conversation, or you still have lawyer to lawyer available.
Speaker 1:So you can be a good system Right, or you can go to conciliation or arbitration. There are a lot of options. At any juncture there are options to look into and I think it's the big message I think is, like you said at the beginning, don't give up. Ask for the information, ask the professionals, whoever they might be at the time, like what are our options now? And you and I, collectively between us, have probably been through a bunch of process switches in cases along the way and we've learned how flexible they can be. And sometimes you really are looking to tailor a process to parties. Right, the participants need a collaborative case, but they need it without so much involvement of the coach. Or maybe they need more, or maybe they need fewer meetings, or maybe they need whatever it is. And it takes time to get to know your client, it takes time to get to know the other participant, it takes time to build that framework, but these processes are all very flexible, they're very, they're very adaptable.
Speaker 2:And it takes time for clients to figure out what might work for them. Sometimes that's right. For most people, any of these formal dispute resolution processes it's the first time someone's experiencing them, that's right and so Different than they thought, Right exactly.
Speaker 1:And they were like this isn't what I wanted. And so I guess the takeaway is you can change. You can change process choices, you can change professionals, you can change your approach, and it's just finding what works for you and the other participant Like just keep talking right.
Speaker 2:Right, exactly, keep talking, keep using your curiosity and understanding what the other person's needs are. Use I statements so you're not blaming or shaming. And if you're working with professionals who are knowledgeable about all of these different process choices, your professionals can help you find the right fit. Once you and your spouse, partner or co-parent are able to articulate your needs in a process, yeah, you're not locked in.
Speaker 1:So I mean you and I, the first case we had together, jen, was a case that had been a mediation that concluded, but concluded without really an agreement that was going to stick, and those folks agreed to undertake a collaborative process, which I think it's kind of unusual to do a collaborative, a full blown collaborative case after mediation. But it worked. It was a very successful outcome and I've certainly seen collaborative cases have to to morph along the way in all kinds of different ways, maybe not ending up in litigation but ending up in I don't know what to call it, but just adapting the process to the situation.
Speaker 2:Right.
Speaker 2:I think sometimes it can morph into collaborative with a small C where you're still meeting but folks, for various different reasons financial, personality, otherwise decide not to have the coach involved.
Speaker 2:I think it can morph into more of a mediation with the coach, depending on what topics are causing the most conflict and creating the impasse. I've also definitely experienced and I know from conversations you have two patrees when it morphs into more of a lawyer to lawyer negotiation style where the clients are not taking a backseat. That's not the right word, but it's more conversations between the lawyers, with the lawyers talking to their individual clients. And one of the things that Patrice and I were talking about before we decided to record this episode is that with the right professionals you're not losing some of the benefits of the collaborative process in so far as with the right lawyers involved, there's still conversations about the underlying reasons and interests and needs of the parties for why a certain outcome is preferable for either client. It's not just a positional give and take. You don't have to lose that other piece. It's not quite the same as hearing each other say it in the room, but it doesn't have to disappear altogether.
Speaker 2:There's ways to still infuse the conversation with that.
Speaker 1:Absolutely, and I think those are the questions. If you think you're there and you need to switch something up. You want to know how do we preserve the progress that we've made? What will be a good thing to do next and what would we be giving up if we change to a different process? What would we be losing, what would we be gaining, and how do we hold together any progress that's been made? Whether that's Preserving progress might be preserving agreements that you've reached, interim agreements along the way, but it might also just be preserving an improved status quo in your communication. Absolutely, yeah.
Speaker 2:So don't give up, keep talking Right, exactly, just like we'll keep talking. Thanks Jen, thanks Patrice.