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Therapeutic Mediation: An Alternative to Costly Litigation

Susan Heitler, Ph.D.

4500 East 9th Avenue, Suite 660-S, Denver, CO 80220

(303) 388-4211, drheitler@gmail.comju

For permission to reproduce this article please contact the author. C Susan Heitler, 1998.

Psychologists and lawyers work in similar businesses. Helping people to resolve their conflicts is a central mission of both professions.

Psychologists like myself apply our skills primarily to personal rather than business realms–to individuals’ struggles between conflicting fears, desires and values, and to the conflicts that bring tensions to couples and families. My own specialty is work with high-conflict couples. I work with married couples, and also with couples in pre-marital and post-divorce (co-parenting) relationships. My goals as therapist are usually three-fold: to guide settlement of the disputes that have driven couples apart, to facilitate healing from their mutual past hurts, and to teach the skills that can enable them to dialogue more cooperatively in the future. This three-pronged therapy process enables most couples to transition from fighting to comfortable partnership.

Lawyers tend to handle business and government-related conflicts, though many also address domestic, criminal, and other issues. Similar principles of conflict resolution pertain, however, whether the arena is personal, family, economic, or political, and whether the entities involved are intimate spouses, competing business people, corporations, or even nations. In all these realms, the pathway from hostility to mutually satisfying resolution requires similar steps.

I recently shared an enlightening conversation about similarities between psychological and legal professional work with a judge from New York. This judge’s reputation for effectiveness in settlement conferences, and for efficiently moving her cases through litigation, is legendary. The secrets to her success, she reported, lie in three basic principles:

  • Make sure the litigants are present in the trial.
  • Ask the lawyers to leave.
  • Get the litigants to talk to one another.

For example, in one trial, the judge explained, she postponed the case until both litigants, not just their lawyers, were present. She then went so far as to instruct the litigants to go out together for lunch before the trial would proceed. In this way she enabled the litigants to talk to each other, and in the cooperative tone essential to constructive dialogue.

Lawyers sometimes feed an adversarial climate, which is part of what prompts this judge to ask lawyers to take a back seat to direct litigant-to-litigant dialogue. On the other hand, lawyers can and often do facilitate conflict resolution. To help clients face their adversaries in settlement conferences in a manner that yields productive dialogue and satisfying outcomes, lawyers, like psychologists, need expertise in techniques of collaborative problem-solving.

The following case presents three such tools:

  • healing techniques, so that hurt and anger are diminished. Only then can cooperativeproblem solving replace rancor, tensions, fault-finding, and blame.
  • a conflict resolution strategy that can enable people in disagreement to talk directly with one another, and to end up with a mutually agreeable plan of action.
  • the rules of cooperative dialogue that can enable adversaries to talk productively.

While these techniques come from the toolbox of a psychotherapist, they hopefully can prove equally useful for resolving disputes in legal settings.

Therapeutic mediation.

Therapeutic denotes a process that leads from emotional distress to emotional relief. The goal of a therapeutic process is restoration of a sense of well-being.

Mediation refers to a process by which a third party assists two antagonistic parties to discuss and resolve issues in dispute. A resolution is an agreement upon a plan of action which is acceptable to both parties because it is fully responsive to the concerns of both parties.

The term therapeutic mediation thus implies a twofold goal: emotional healing plus agreement on a plan of action.

The case

The following case was referred to me by a lawyer who wanted to see if the case could be settled without going to trial. The lawyers client, Mrs. A, had limited income, minimal social support, and significant emotional vulnerability. Her lawyer felt that a lengthy court process, whatever the outcome, would be too costly in time, money, and emotional drain to be worth any potential gains. In addition, he intuited that even a ruling in his client’s favor might not adequately resolve the complex emotions the situation had aroused for her. The referring lawyer also expressed compassion for the other litigant, Mr. B., a young lawyer whose career would suffer if the case went to trial. The lawyer therefore had suggested that a therapist might be able to help the litigants come to a mutually agreeable settlement. If a therapeutic settlement process did not prove satisfactory, his client then could pursue traditional legal options.

Mrs. A wanted to file a malpractice lawsuit against her prior divorce lawyer, Mr. B. The charges would have included

  • substandard professional performance
  • sexual harassment
  • a fee dispute; Mrs. A. was refusing to pay Mr. B’s bill for his legal services.

The dilemma Mrs. A., a divorced mother of four, had struggled for many months with strong resentments. She felt that her divorce court proceedings had unfairly given her less than her due. Her current lawyer (who had referred the case to me) confirmed to me that what his client had received was in fact sub-standard. He agreed that her substandard settlement had probably resulted from less than fully competent legal representation from her former lawyer.

To bring closure to her negative feelings about her divorce proceedings, Mrs. A wanted a way to reprimand Mr. B, her former lawyer. She also was refusing to pay his bill. Mr. B., meanwhile, was suing his former client (Mrs. A.) for non-payment for his services.

Treatment format and outcome

I seated the two litigants in identical chairs placed at right angles to each other with a small table between them. I sat facing them, the third point in an equilateral triangle. This circular arrangement feels avoids positioning any of us head-on or face-to-face, which would have a more combative feel. Note that the mediator needs to be seated equidistant from the two disputants, not closer to one than to the other. The architecture of the seating arrangement conveys messages about fairness, power, and alliances and therefore merits serious attention.

I usually schedule psychotherapy sessions for 45 minutes. Therapeutic mediation cases generally need somewhat longer sessions, i.e., 60 to 90 minutes. In this case, one 60 minute session was sufficient for the case to reach full closure. The case ended with mutually acceptable settlement of all the issues, emotional, financial, and legal. Furthermore, both parties left feeling fully resolved. This sense of closure meant there would be no further court appeals or enforcement problems.

What happened in that 60 minute black box? Our discussions included two main processes:

  • · A therapeutic process. Healing is necessary after a wrongful action that has resulted in either party feeling victimized. Truth-telling, apology, and reconciliation relieve emotional distress in the injured party in response to hearing repentance from the harm-doer.
  • · A conflict resolution process. We created a plan of action that addressed and resolved the elements in dispute. Note that conflict resolution is synonymous with collaborative problem solving. When conflicts are addressed cooperatively, fighting converts to shared problem-solving.

Therapeutic techniques for facilitating emotional healing

Technique #1: Piecing together the puzzle.

This first technique in the healing process requires litigants cooperatively to piece together the full puzzle of what happened.1 To accomplish a mutual clarification of what has happened, each participant needs to verbalize what s/he felt, thought, and did at each point during the controversial event.

Note how this process departs from adversarial dispute settlement. In an adversarial conflict parties cannot acknowledge what they have done that perhaps proved problematic, and especially cannot openly admit mistakes. Open disclosure of errors works against their best interests. Prudent litigants withhold and deny information. Anything they say about actions that with hindsight proved to have been misguided can be used against them. A collaborate process, by contrast, requires that both people offer full disclosure in order to build a consensual understanding of what has happened.

Mr. B. and Mrs. A. agreed that their lawyer/client relationship had become too personally intimate. Mr. B and Mrs. A. had become quite fond of one another in the course of their legal work together. While they had not progressed to the point of sexual relations, Mr. B. had become emotionally involved with his client to a point of losing objectivity on the case. Mrs. A enjoyed their sessions together but gradually became anxious as she began to realize that her focus had been more on the lawyer-patient relationship than on the legal matters involved. Moreover, in enjoying their emotional closeness, Mr. B. had in fact fallen behind in his preparations for trial. Significant time in their sessions together had been siphoned from business to personal matters.

As the trial date approached, Mr. B felt increasingly unready to represent his client in court. He suggested a settlement proposal at the last minute to prevent the case from going to trial. His proposed settlement however dismayed his client. Mrs. A felt that the  proposal sold short her needs, fell far below her expectations, and did not meet the standards to which she by law was entitled.

Mr. B and Mrs. A. then began to argue. Rather than escalate the arguing, and feeling emotionally over-involved, Mr. B. withdrew from the case. A week before the trial, he asked one of his partners to take over the case.

Agreement on these facts completed the process of piecing together the puzzle of what had happened. Verbalizing and validating the truth is inherently therapeutic. Hearing Mr. B. acknowledge the attraction and affection he had experienced toward her felt reassuring. Interestingly, however, what brought Mrs. A. the most emotional relief proved to be hearing Mr. B acknowledge aloud the events that had transpired. As she put it, “Now I know I wasn’t in some never-never world.”

Therapeutic Technique #2 Apologies

After Mr. B and Mrs. A had both agreed upon the facts of what had transpired, the next step was to issue apologies. Apologies remove the toxic sting from mistaken interactions. A fully effective apology includes the following five elements2:

  • Acknowledgment of the troubling action and its impact on the other.

In this case, this first goal was accomplished in technique number

1, putting together the puzzle pieces of what happened.

  • Expression of regret for the suffering that was incurred.

Mr. B. needed to say, “I’m sorry that our relationship proved harmful instead of helpful. I’m sorry also that your case turned out to have a disappointing outcome, disappointing for both of us.”

  • Statement of non-intentionality, e.g., “I didn’t intent to hurt you.” Explanation of the circumstances can further help to clarify how and why the upsetting interaction unintentionally occurred.

“I didn’t intend for your settlement to come out beneath what you had hoped for. I wanted only the best for you.”

  • Restitution for damages.

The damages in this case involved primarily legal charges for work that Mrs. A felt had been substandard.

  • Learning. A plan to prevent recurrences of similar events in the future turns the negative event into a positive opportunity for learning and for preventing similar or worse mishaps in the future.

Mr. B initially resisted offering an apology. While he did acknowledge that he had erred in becoming emotionally over-involved, in falling behind in his case preparation, and in succumbing to angry bickering with regard to his settlement offer proposal, the words “I’m sorry” felt beyond what he could offer. To help him, I asked Mrs. A. to return for a few moments to the waiting room while I spoke alone with Mr. B. In private we addressed Mr. B’s fears about acknowledging his mistakes.

Thoroughly trained in the adversarial system, Mr. B’s primary concern was that admitting errors might make him more liable to a grievance suit. We discussed the alternative view, that inability to admit errors would even more certainly bring about a grievance. He agreed.

Mr. B then admitted that in his personal life as well he did not feel that he knew how to apologize. I coached him. We practiced several attempts, the first several of which were in fact quite inadequate. By the time I invited Mrs. A to rejoin us, however, Mr. B was able to offer an apology– stilted, but nonetheless adequately effective.

Mr. B admitted, “I feel sorry that my affection for you ended up interfering with the work I did for you. I’m especially sorry that you ended up feeling like the settlement suffered as a result. I feel badly about all of it.” This apology, even more than the acknowledgment of what had happened, proved intensely powerful for Mrs. A.

Next, Mrs. A needed to be able to take responsibility for her part. “I wasn’t a total victim in our interactions,” Mrs. A acknowledged. “Even though you were the professional, I see now that both of us became over-involved emotionally in each other. I kept coming to our meetings even though I knew you weren’t taking adquate care of my case. I kept scheduling meetings with you because I was getting something out of our relationship. After so many years in an abusive marriage I soaked in your affections. I felt renewed by our time together. I wasn’t just a victim. I chose to continue our contacts.”

Note that while both parties acknowledged and apologized for their errors, the errors and apportionment of responsibility were not presumed to be equal. It may be true that it takes two to tango, but in many interactions the damaging event is less like a tango and more like the interaction between a robber and a bank teller. A professional such as Mr. B., a lawyer, bears a higher proportion of responsibility than the client for what transpires in a professional/client interaction. One vital role of the judge or mediator is to insure that apportionment of responsibility is proper.

In this regard, a mediator needs an understanding of the relevant law. Mediating does not mean meeting in the middle. Fair does not mean attributing equal responsibility. Fair means encouraging each party to take appropriate responsibility for his/her parts in the problem. And fair means in accordance with the relevant law.

Conflict resolution proceeds most smoothly if it is preceded by emotional healing. So far we have seen the following therapeutic (healing) elements of this mediation:

  • Truth via the puzzle making technique for agreeing on the facts of the distressing event.
  • Reconciliation via acknowledging mistakes and expressing apologies for suffering.

Conflict resolution

Collaborative conflict resolution is a process of finding mutually agreeable outcomes to situations in which apparent differences spark tensions. This process involves three main steps.3

  • Express initial positions
  • Explore underlying concerns
  • Create win-win solutions.

Step One: Express initial positions

Conflict resolution begins by clarifying the differences, that is, by stating the initial positions of each party. Positions generally are expressed as a preferred course of action, that is, as the outcome solutions that each party initially believes that s/he wants. Mrs. A wanted Mr. B punished. Mr. B. wanted his fees paid.

Step Two: Explore the underlying concerns.

In a therapeutic mediation (or other collaborative settlement process) neither side needs to convince the other of the rightness of their position or to establish domination in any fashion. Instead, after expressing their initial positions both sides join together to explore the underlying concerns which have given rise to each of their respective positions.

It can be helpful to picture the underlying concerns of both parties as being listed on one list–not on a Party A list and a Party B list. Two lists foster either/or, mine versus yours, thinking. The problem will be considered resolved when a solution has been devised that is responsive to all of the concerns, so both parties need to be thinking from the outset of solutions responsive to the other person’s concerns as well as to their own.

Exploring underlying concerns departs significantly from what typically occurs in adversarial dispute settlement. In an adversarial dialogue, the parties’ discussion tends to remain focused on positions. Parties engage in a tug of war over their positions, each insisting on the rightness of their own viewpoint and the wrongness of the other. Positional bargaining is a term coined by Fisher and Ury to describe this adversarial dispute process.

Locked in battle over initial positions.—“My way.” “No. My way.”–participants in positional bargaining generally end up settling the fight on the basis of power. Coercive power determines which side will win. Power to convince the other to relinquish their position or to convince a third party to declare one side the victor decides the outcome. The power that enables one side to prevail can come from any number of sources–for instance, ability to argue more persuasively, more potent financial or other resources, or ability to threaten enough damage that the other gives up.. War is the ultimate expression of positional bargaining.

By contrast, in collaborative dispute settlement, participants benefit most by striving to understand each other’s concerns. Parties need not insist on their concerns, and need not convince the other of the rightness of their concerns, because both parties define success as finding solutions responsive to all of their concerns. Similarly, parties do not benefit from the adversarial positional bargaining strategy of disparaging or dismissing the other’s concerns. The more fully the opposing parties attain mutual understanding, the more effectively they will then, in step three, be able to create mutually acceptable solutions.

What were Mrs. A and Mr. B’s underlying concerns? Mrs. A’s underlying concerns centered on two questions. These concerns focused on issues that could not have been explored in an adversarial court process. For closure and healing, however, these questions were of prime import.

  • Had Mr. B really thought that she was as attractive and likeable as he had seemed to indicate?
  • Did he still find her attractive and likeable?

Mrs. A then tensed again, indicating a further concern. As she began to speak, she needed guidance in order to express her own fears, not what she didn’t like about Mr. B. Initially angry, as verbalized her concerns instead of criticizing Mr. B, her tone of voice switched from accusatory to tentative.

“I feel I was done a disservice. I’m afraid I wasn’t represented adequately.”

Mr. B was able to respond by acknowledging the validity of Mrs. A’s concern. “I probably didn’t do enough preparation on the case,” he admitted sadly. “I feel terrible that I probably did cause stress for you by withdrawing at the last minute. At the same time, withdrawing felt like the most professional action I could take at that point.”

Mr. B’s heartfelt response to these concerns again engendered significant relief for Mrs. A. His success in part was due to his use of the words “At the same time.” These words, like the word “and,” signal addition. If instead he had said, “But…”, he would have erased his validation of Mrs. A’s concerns. In that case, his explanation of his reasoning in withdrawing would have sounded like an excuse rather than like additional information.

Mrs. A continued, listing one other major concern. She had felt abandoned. Abandonment, like attachment, raises potent emotions.

Fortunately, Mr. B again was able to acknowledge the truth in Mrs. A’s experience, even if he did also see his “abandonment” of her as having been the best choice he could make at that time. “In a sense I did abandon you. I did drop out of the case. At the same time I want you to know that the reason I dropped out is because I was off track. I couldn’t represent you adequately because I was so emotionally involved. Our arguing felt more like a fight between a married couple than like counsel advising a client. That’s why I dropped out. I was hoping to get you more objective representation.”

By validating Mrs. A’s concerns about having been abandoned, and then adding information about his thinking in withdrawing from the case, Mr. B. lifted a last emotional burden from Mrs. A. Mrs. A felt relieved, accepting Mr. B’s distinction between abandonment and his having departed as an action taken with her best interests in mind. Mr. B’s then explained his primary remaining concern.

Mr. B felt that while he had erred in many ways, he also had put many hours of genuine legal work into the case and wanted remuneration for these. Mrs. A in turn was able to acknowledge that while he had not succeeded in obtaining a positive outcome for her, Mr. B had accomplished significant hours of pre-trial fact-finding.

Mrs. A and Mr. B thus succeeded in expressing each of their concerns, and also in conveying to each other that the concerns had been heard and understood.

Step Three: Creating win-win solutions.

The third and final step in the three step conflict resolution process, creating solutions, often proves the simplest, provided concerns have been fully delineated in the prior step.

Most of the necessary solutions in this case had already occurred via information sharing, apology, and the building of new understandings (e.g., of why the abandonment had happened). Most of the more potent emotions had already eased. The fee dispute was about the only issue that remained. With so much mutual understanding and a resumption of at least some good will, the fee issues turned out to be fairly easy to resolve.

Mrs. A and Mr. B each expressed their views of the fee situation. Within a matter of minutes, and with very little guidance from the mediator, they were able to come up with a fee agreement that both of them felt would be fair. The agreement took into consideration Mr. B’s concerns–the time that he had put into the case–and also Mrs. A’s– the reality that he had not completed the task.

A solution is a plan of action. Because most disputes involve multiple concerns, the solution generally turns out to be a solution set rather than a simple one-dimensional plan. The solution set to this dispute, for instance, included

  • acknowledgments from both parties of their mistakes
  • apologies, particularly from the professional, the lawyer, to his client
  • validation from the lawyer to his client of positive regard for her
  • agreement on decreased but not totally eliminated fees

Rules of Procedure

The rules of cooperative procedure differ significantly from those of adversarial dispute settlement. Both processes do, however, rely upon distinct rules. Collaborative dialogue requires the following procedural guidelines:

  • The rule of talking: Talk about yourself, or ask about the other; but do not talk about the other.

Each person needs to express his or her own feelings and thoughts. Each can ask about the other person’s feelings and thoughts. Neither is allowed to speak about what the other thinks, feels, is trying to do, or about their character. Instead participants are to use their air time to express their own thoughts, feelings, and concerns.

In adversarial dialogue, by contrast, significant air time goes to accusations, interpretations, and misinterpretations of the other person. These crossovers,4 that is, verbalizations about the other instead of about themselves, escalate ill will, defensiveness, and divisiveness. They are totally contrary to a spirit of cooperation.

Fisher and Ury5 state a related rule when they advise “Talk about the problem, not the person.” Finger-pointing of any kind is almost invariably counter-productive.

The rule for talking contrasts distinctly with procedure in adversarial settings. There blame, accusation, criticism, and attribution of negative motives to the other are generally considered fair play. In collaborative settlement, these negative tactics are out of bounds.

  • The rule of listening: Listen to learn.

Listening for what is useful, for what makes sense in what the other says, leads to consensus building. By contrast, listening to criticize what the other says increases tensions and halts cooperative problem-solving.

This rule may sound rather like a kindergarten rule. Doesn’t everyone listen to learn? Not so, particularly in an adversarial settlement system. In adversarial legal argument, participants listen primarily for what is wrong with what the other person has said in order to discredit the other’s input.

A key sign of listening dismissively rather than in cooperatively is the word but. As suggested above, the word but, or it’s close cousin Yes, but, expresses disagreement. But indicates that the prior speaker’s points are being pushed aside, not integrated into a shared data base. But indicates that a dialogue is polarizing, not building additively toward consensus.

  • The rule of climate control.

If either party’s emotions begin to escalate, both parties need to briefly disengage. Each needs to be responsible for regaining a state of relative calm before resuming the dialogue.

While expressing feelings is important, angry dialogue almost always leads away from resolution. To stay on pathways that lead to increased understanding, participants need to express their angry feelings in words, following the rule of talking. They need to verbalize, “I am feeling frustrated,” not dramatize, their feelings. Acting out feelings with loud voices, critical voice tones, or accusatory language generally dooms cooperation.

Anger often results from violation of the rules of talking and listening. When someone speaks accusatively, or shows no evidence of listening, the other party is likely to feel irritation rising. At the same time, anger increases the risks of further talking and listening violations. Inflammatory comments and poor listening escalate emotion; escalated emotions invite more inflammatory comments and blocked listening.

When tempers warm up, pausing the discussion momentarily so that everyone can cool down is advisable. Emotional escalations are incompatible with cooperative dialogue because as anger increases listening, analytic ability, and creative thinking all decrease. A heated environment consequently almost always proves unproductive.

With these three basic rules of collaborative procedure–one rule of talking, one rule of listening, and one rule of emotional tone–what results can participants expect? Combined with therapeutic elements like mutual truth-telling and apologies, plus passage through the three steps of collaborative conflict resolution, the three rules of collaborative procedure insure:

  • a streamlined dispute resolution process.
  • a sense of closure within both participants
  • a feeling that justice has been done.

Justice

What does the word justice mean in this context? In the legal system, the word justice too often has become synonymous with punishment, particularly after misbehavior. By contrast, Mrs. A. left with a strong sense of justice having been done, but not because any punishment had been levied. Rather, her sense of justice came from

  • having received recognition that she had been correct in her understandings of what had transpired between her and Mr. B
  • Mr. B’s admission that he had erred in his professional responsibilities
  • his having apologized for and even learned from these errors
  • restitution. Reduction of her lawyer’s fee, the remainder of which Mrs. A now would willingly pay, served as restitution for Mrs. A.

A brief look at what skilled parents do when their children misbehave may help to clarify the ineffectiveness of equating justice with punishment. Skilled parents regard discipline as a process for teaching their disciples. Punishment is tempting in response to wrong-doings. Wrongdoings elicit anger, and anger engenders an impulse to strike out to hurt the other. Punishment, however, is relatively ineffective as a teaching device because it creates anxiety, low self-esteem, and resentment–all of which generally impede learning. Problem-solving and promoting learning are more effective as well as equally just responses to misbehavior.

Thus if the purpose of justice is to set the stage for better behavior for the future, not simply to obtain an eye for an eye, we need to be wary of too simply equating justice and punishment.

Requirements and risks

For therapeutic mediation to succeed, both parties (and their lawyers) need enough emotional maturity to be able to abide by the procedural rules. They need to be able to acknowledge their errors, not lock into a blaming stance. They need to be able to express genuine regret for the outcomes of their mistakes. They also need to be motivated by basically good intentions, not by greed or other impulses that impel them to seek more than their fair due. Without these capabilities and/or firm guidance from the mediating professional, a therapeutic process will not succeed.

Second, some litigants tend to ask for more than they deserve; others may be too quick to give up on matters of import to them so as to end the conflict as quickly as possible. A mediator needs sensitivity to unfinished emotional agendas and skills at flushing these out. Mediators also need always to bear in mind legal standards of what would constitute a fair outcome, lest an agreed-upon settlement in fact be less than fair by law.

Lastly, if therapeutic mediation should work out poorly in a given case, the adversarial system would be the fall back alternative. Can admissions of guilt established in a failed therapeutic mediation endanger a client’s case? This question needs to be monitored by the legal community to be certain that adequate safeguards protect clients who chose to attempt therapeutic settlement.

Limitations

Therapeutic mediation only works with parties who are seeking a fair settlement. Parties who have all-or-nothing, I-win/you-lose, goals, those who hold rigid unrealistic expectations of what justice should look like in their case, or those who are using the court system to bludgeon less powerful opposition into submission to their demands are unlikely to be willing participants in cooperative procedures.

Litigants who are locked in an I’m right/You’re wrong mode will find this system of justice unsatisfying. People who are locked in a blaming stance escalate their anger when asked to take responsibility for any portion of the distressing event. With these individuals, this method is likely to increase hostilities instead of proving therapeutic.

Closing Overview

The vast majority of dilemmas that clients bring to lawyers are addressed in settlement conferences rather than in court. Therapeutic mediation techniques–which exchange blaming, fault-finding and punishing for truth-telling, reconciliation via apologies, and cooperative problemsolving–are ideal for these cases. Therapeutic mediation can heal emotional injuries, settle disputes, and bring justice to aggrieved parties– with added bonuses of dramatic efficiency and long-lasting effectiveness. For lawyers and judges to add therapeutic mediation to their repertoire, however, they need to make a major cognitive switch from adversarial to cooperative thinking, and to change significantly their rules of procedure.

To conclude, the following chart summarizes the vast array of differences between traditional adversarial settlement of disputes, and a therapeutic mediation.

Two Settlement Processes:

A Comparative Analysis

Adversarial Settlement

Therapeutic Mediation Adversarial Settlement
1 Defines the dilemma as a problem to be solved and/or injuries that need restitution and healing. Defines the dilemma as a question of who is right and who is wrong.
2 Assumes that both sides are basically well-intended and have legitimate concerns. Assumes wrong-doing and negative intentions on the part of at least one party.
3 Expects to conclude with a win-win mutually agreeable plan of action. Expects to conclude each issue with one side winning and the other losing.
4 Regards feelings as keys to understanding underlying concerns. Regards feelings as intrusions into a rational process, or as a means to manipulate the court to obtain a specific outcome.
5 Focuses on clarifying what happened in order to better understand

  • the initial positions
  • both sides’ underlying concerns
  • a plan of action responsive to all of these concerns.
Invites participants to present their view of what happened to convince the court to choose their preferred solution.

Skips clarifying underlying concerns; instead encourages positional bargaining.

6 Expects participants to speak for themselves, articulating their own thoughts, feelings, and preferences. Expects lawyers to speak for their clients.

Clients watch.

7 Expects empathy to increase as participants air their feelings and hear the other’s feelings. Information exchanges result in decreased polarization. Perpetuates blaming and fixed viewpoints. Does not expect participants to be open to new information or to experience increased empathy. Information exchanges result in increased polarization.
8 Helps participants to piece together a shared and non-blaming understanding of what happened. Expects judge/jury to guess a middle ground explanation between two opposing airbrushed and extreme versions of what happened.
9 Fosters agreement. “Yes, that’s what happened.” Fosters argument. “No, you’re wrong. I’m right.”
10 Expects a process of taking responsibility. Encourages each side to own responsibility for its contribution to what happened rather than to attribute fault to the other. Expects a process of attributing fault. Encourages each side to present itself as the victim and the other as the villain. Each side exonerates him/herself and blames the other.
11 Blames mistakes, misunderstandings, misperceptions, or a system problem. Blames people.
12 Utilizes apologies for healing and reconciliation. Fosters denial of responsibility rather than acknowledgment of mistakes or concern for the other’s injury.
13 Expects participants to create solutions. Emphasizes healing and problem-solving. Expects the judge to create solutions. Emphasizes burdens and punishments.
14 Fosters learning, re-instatement of cooperation, and return of normalcy. Fosters defensiveness, blaming, and continued resentments.
15 Responsive to emotional concerns as well as monetary and legal issues. Responsive primarily to factual, monetary, and legal issues.
16 Yields emotional relief and closure. Leaves reservoirs of ill-will.
17 Expects process to be brief. Expects process to be long, with extensive preparation, delays from the filing of unlimited number of motions, subpoenas, etc, plus lengthy wait for court date.
18 Minimizes expenses. Uses one mediator and two consulting lawyers. Minimal court costs. Engenders high expenses in time, money, bad publicity, and negative impact on ability to do business during the period of dispute.
19 Requires close adherence to rules of constructive collaborative dialogue. Requires close adherence to rules of evidence and courtroom procedures.
20 Results in a decision that feels fair to all participants. Results in a decision that feels fair to the judge/jury, with one or more litigants likely to feel unhappy with the outcome.
21 Yields a plan of action with high likelihood of fulfillment. Further court involvement unlikely to be requested. Yields significant likelihood of non-compliance and/or appeals, both necessitating further court involvement.

Summary by

Susan Heitler, Ph.D.

For permission to reproduce, please contact drheitler@gmail.com.

From Conflict to Resolution: Psychologist/Divorce-Attorney Collaborations

Susan Heitler, Ph.D.

drheitler@gmail.com; 303 388-4211; www.therapyhelp.com

This paper is adapted from Dr. Heitler’s chapter in A Practice That Works, Harris, S.M., Ivey, D.C. and Bean, R. (eds), 2005. New York: Routledge.

Divorce lawyers and clinical psychologists have much to gain by forming working alliances. This article explains the kinds of positive synergies that lawyers and psychologists can develop. For instance, I have worked on cases referred by divorce attorneys to address the following issues:

  • · To give a marriage one last chance for growth, particularly in cases where one or both partners would prefer to fix than to end the marriage, even if it is just “for the sake of the children.”
  • · To resolve ambivalence about divorce, in situations where spouses take two steps forward and then one backwards with regard to movement toward legal finality.
  • · To ease excessive emotional distress during the divorce process when the client does not want a divorce but the spouse insists on it.
  • · To reduce angry fighting between the spouses during divorce negotiations.
  • · To facilitate post-divorce healing.
  • · To assist children of divorce in their post-divorce adjustment and co-parents with establishing appropriate collaborative interactions.

How I stumbled into work with divorce lawyers

I began to receive referrals from a first divorce lawyer quite a few years ago. I could not remember how it began, so I asked the lawyer himself. His report:

“Friends of mine came to see you. The husband had children from another marriage. They loved your work because you were helping them with step-momming issues. You gave them good advice. That was 18 years ago. I researched who you were then and we talked some. You said you worked with couples, and I referred my first case. You had this advanced collaborative thinking methodology. So I started to pick and choose with my clients, thinking who would want a therapist who gets down to brass tacks. And I began thinking about which marriages could be saved. Which people are desparate to try one last time even if I know there’s nothing left to save. Where you could be helpful in the mediating….”

Appropriate candidates for this strategy

The following criteria for each of the three populations involved–lawyers, couples, and therapists—stem from my experience, not from scientific research.

Lawyers. As I think about the various lawyers who have referred cases to me over the years, they seem to share the following characteristics.

Abundance: For starters, lawyers who have more people inquiring about their services than they can handle are likely to be most open to referring clients for therapy. Realistically, while lawyers with overload will not be the only lawyers who refer, they may be the least threatened by the possibility that some clients whom they refer to a psychological professional will mend the marriage instead of continuing to pursue the divorce option.

Confidence: To refer to therapists, a lawyer needs confidence both in the specific therapist and in the effectiveness of therapy in general.

Emotional sensitivity: Lawyers definitely vary in their perceptivity about, and interest in, their clients’ emotional states. Only some attune to their clients’ ambivalent feelings about divorce, ask outright about lingering love, or regard spouses’ anger as remediable. Those with this sensitivity are most likely to feel comfortable referring ambivalent clients for psychological evaluation and treatment.

Belief in marriage. Lawyers also differ in the extent to which they believe in rescuing potentially redeemable marriages. Some lawyers are like mortuarians, defining their work as closing the casket on what they assume to be dead relationships. Others perceive their job as being more like that of a priest. They would rather save the dying marriage than issue last rites for the couple. These latter lawyers appreciate knowing a therapist they work with to resuscitate the marriages that are still breathing.

Clients. I generated the following list by thinking about the clients who have been referred to me to clarify who seemed to benefit from treatment versus those who were resistant to treatment or left after one session.

Motivation. One or both partners must feel a significant motivation to make a last effort at reconciliation. The motivation for reconciliation may be financial, what’s best for the children, religious-based, love, or desire for a smoother divorce process. For clients with no motivation, therapy is unlikely to have much impact.

Sometimes this motivation can be induced by the lawyer. For instance, the lawyer might say “This much anger is going to make for a very expensive divorce. I’d recommend you go to therapy to see what you can do about coming to peace with your situation before we move forward.” Or, “Your husband’s anger at you is going to make this a very costly and combative divorce. I’d recommend you go together to therapy to help him come to peace with the divorce before we proceed further.”

Strengths. Like most therapy, divorce-related treatment is more likely to be successful with patients who demonstrate capacity for insight and willingness to grow.

Insight here refers to the ability to explore the parts that they may have played in the relationship’s demise. Growing refers to ability to learn new ways of handling the role of spouse, new behaviors to substitute for former problematic habits, and new ways of communicating and handling conflict.

Paranoid features. If one party blames the other spouse in a manner that has become a fixed paranoid stance, treatment will be unlikely to modify the blaming, particularly if this ideational system is fixed and non-permeable to new information. Therapy with these couples nonetheless can be beneficial for the healthier spouse who may need help understanding the confusing phenomena of cognitive rigidity, projection, and a fixed blaming stance.

Affairs. When one spouse has developed a strong emotional attachment to a third party, this attachment is generally an extremely bad sign for saving the marriage. Occasionally however, treatment in a couple therapy format can renew the betraying spouse’s recollection of how the marriage used to be, and can inspire a vision of how it could become. A return to monogamy may again begin to look appealing, especially if the lover has become burdensome over time. Sometimes also the errant spouse needs coaching to accomplish ending the affair.

Psychopathology. Psychopathology such as depression, anxiety, compulsive habits, controlling behavior, or excessive anger is often a key factor in marriage difficulties. Anger problems, addictions, and affairs are the big three causes of divorce. Psychotherapy that addresses these issues can sometimes alleviate the cause of the marriage’s demise.

Individual therapists. When one spouse is in individual therapy, or worse, if both are in individual therapy with different therapists, these help-structures can inadvertently precipitate the belief that divorce is the only option. A switch to one therapist who handles both the couple and the individual treatments in an integrated fashion can sometimes put the marriage back together again.

Multiple research studies have shown that when people in a troubled marriage undergo individual therapy, they become at increased risk for divorce (Heitler 1990, 2001). A treatment format in which one therapist handles both the individual and the couple treatment sessions, however, can sometimes resuscitate these marriages, healing the iatrogenic (doctor-induced) damage.

Therapists. I generated the following list of therapist attributes by reviewing the various therapists who have worked in our office suite over the past decade. I looked for what seems to differentiate the ones who did well with attorney referrals from those who either did not want the referrals or did not experience success with them.

Conflict resolution expertise. Potentially divorcing couples are likely to have many areas of entrenched conflict, so above all a therapist for all-but-divorced couples must be skillful at helping couples resolve their differences. These skills include anger management, techniques for cleaning up the toxic residues of past poorly-handled conflicts, skills for teaching improved communication and conflict resolution patterns, and expertise at guiding seemingly irreconcilable conflicts to resolution (Heitler, 1990, 1992, 1995, 1998, 2001)

Confidence. For couples who are taking one last try at obtaining help and who have consulted a lawyer because they feel hopeless about reviving their lost love, a therapist needs to be able to inspire their hope. This task requires radiating confidence. Confidence comes in part from having experienced many couple therapy successes, and perhaps even more from a therapist’s temperamental tendency to positive thinking.

High activity level. The therapist must utilize highly interventionist treatment methodologies. At the outset of treatment especially, merely remaining a calm presence and a good listener is not enough. Divorcing couples for years have played and re-played conditioned angry responses. By the time they seek a divorce attorney, they may be totally allergic to each other. Therapists need to be able to take charge for the sessions to feel safe and productive. They need to intervene immediately at the slightest slippage off the narrow pathway of healthy communicating. They need to offer clear guidance so that talking about the unfortunate past consistently concludes with learning for a better future. A more passive definition of the therapist’s role will not suffice.

Comfort with being in charge. How does a therapist know that he or she will be effective at keeping all therapy sessions safe and constructive? I used to teach junior high school, which helped me enormously. Therapists who have raised teenagers may have the requisite experience. Therapists who grew up as the mediator in a family of origin with much fighting also may have well-developed “natural” skills for cooling marriage conflict having been mediating conflicts in their contentious family since early in their youth. This is one kind of work where such a childhood can prove to be an advantage.

Orientation toward health. Lastly, this kind of therapy requires that a therapist have clarity about how healthy couples communicate and deal with differences (Heitler, 1990, 1997, 2003, 2008). A therapist who does not know clearly the skills necessary for healthy talking together and shared decision-making is unlikely to be able to make these phenomena happen.

Belief in marriage, and understanding of the limits of marriage. The Case for Marriage by Waite and Gallaher (2000, Broadway Books, NY) and The Case Against Divorce by Medved (1989, Ballantine Books, NY) are essential reading. Interestingly, the final chapter of The Case Against Divorce provides a particularly excellent decision tree for when healing a marriage is ill-advised and divorce is a more appropriate choice.

Special training needed

As I describe in my book From Conflict to Resolution and illustrate in the video The Angry Couple, therapists who work with high-conflict couples need to be able to

  • guide the movement form conflict to resolution
  • contain the arousal levels in the therapy session to keep everyone in a constructive emotional zone
  • explore efficiently the family of origin issues and transference patterns that exacerbate a couple’s conflicts, and
  • coach the skills that can enable couples to talk and resolve conflicts cooperatively on their own once therapy has been concluded. I have detailed the skills which healthy couples use to communicate effectively, manage anger, and handle differences in The Power of Two.

Treatments outcomes

Of the peri-divorce cases referred to me by divorce lawyers, my estimate is that between a half and two-thirds end treatment with saved and well-functioning marriages. The remaining couples generally conclude treatment with their ambivalence about the divorce significantly reduced, a more cooperative divorce, and emotional relief from understanding more clearly and without blame how their once-hopeful marriage turned to disaffection. This growth typically includes gaining deeper understanding of the role family of origin experiences of both spouses played in how they handled the role of marriage partner. Lastly, they have been introduced to, and hopefully even learned, the communication and conflict resolution skills they would need for improved odds of success in subsequent relationships.

A small number of my lawyer-referred couples—less than a handful in total over more than a decade of this work–have left treatment with their anger at each other unabated and without significant personal growth. In these cases, one or both partners remained locked in blame, that is, manifested paranoid or abusive personality tendencies.

Clinical outcomes

The following three cases illustrate several types of cases that lawyers might refer to a therapist, the kinds of interventions called for, ethical considerations, and outcomes. They are the three most recent cases referred by divorce attorneys to me.

A saved marriage. When the lawyer called me to ask if I had room in my practice to accept Jack and his wife Sandy (names changed for confidentiality) for treatment, he emphasized that Jack, a client with whom he had met only once, seemed to be a lovely fellow. Jack had long been unhappy in his marriage yet was wary of pursuing a divorce. He had been in individual therapy for several years, and was taking anti-depression medication. Neither treatment had brought him relief from his chronic unhappiness, anxiety, and compulsive ruminations. Jack had been involved in affairs, one of which he was currently ending. He was living separately from his wife. He thought he still loved her, but whenever he was near her he felt anger. Jack felt distressed also by what felt were poor relationships with his high school and college-aged children.

The outcome of this case has been highly sanguine. Jack now has moved back home, his Depression has lifted, he is optimistic about the marriage, and his relationships with his children are improving.

Couple treatment focused initially on helping Jack’s wife Sandy see that she inadvertently but consistently negated virtually everything Jack said to her. In the couple’s first session Sandy had resisted my observation that she was responding with “but…” to most of what her husband said. A key factor in her being able to move past this initial resistance was that, with signed patient permissions, I routinely audiotape treatment sessions (Heitler, 1995). When Sandy listened to their session recording at home, she was shocked and dismayed to hear the extend of her buts.. To her credit, she immediately strove to shift her listening mode from criticizing to listening for what was interesting in her husband’s comments, a shift that dramatically encouraged Jack.

In the second session we addressed Jack’s long-standing habit of speaking in a depressed barely-audible whisper. Jack reluctantly agreed to try speaking in a normal voice, selfmonitoring (giving numbers from 1 to 10) his voice volume intermittently for the remainder of the session. First in that session, then at work, and eventually in visits with his wife, his stronger voice led him to sit up straighter and to feel more personally empowered.

The therapeutic structure combined individual and couple treatment formats (Heitler, 2001). The treatment schedule included individual sessions (initially for both spouses, and then later for just Jack) plus one couple session each week for the first several months of treatment. Interestingly Jack liked his wife Sandy’s interest in hearing his individual session tapes. He regularly brought them home for her to listen to, which enabled his wife to understand with more empathy his struggles. This practice yielded the added benefit of helping Sandy to reduce the extent to which she interpreted Jack’s withdrawn behaviors in a personalized fashion, that is, as lack of love for her. Listening to the tapes enabled Sandy also to understand along with Jack the family-of-origin sources of his nervous agitation when he was at their house and his tendency to withdraw or leave the house. With this understanding, Sandy was more able to relax and become again the positive, good-humored and safe person Jack had married. Her transformation in turn made it easier for Jack to break out of his chronic anxiety, learned initially from growing up in a trauma-ridden family. As Jack resumed at home the adult selfconfidence he tended to feel outside of his home environment, his desire for escape methods such as affairs or divorce diminished.

Jack in individual treatment experienced difficulty believing that his childhood has been as traumatic as his recollections made it sound. The couple sessions helped considerably in this regard. His wife’s observations about the chronically humiliating treatment Jack, and later Jack and his wife, had been subjected to by Jack’s father helped to break through Jack’s minimizing and repression, consolidating his understanding of the sources of his years of misery. By distinguishing what was the same (both were family) and what was different (virtually everything else now that Sandy no longer deprecated and dismissed him) between his father and his wife, Jack gradually freed himself from the long-held pattern of disappearing that he learned in a painful childhood.

Jack and Sandy currently are learning collaborative communication and conflict resolution skills to replace making decisions with one of them caving in to solutions they didn’t want. They learned also to talk over upsetting incidents in ways that would lead to healing and learning instead of continued resentments. Having both grown up in dysfunctional households, these basic couple skills had not been in their repertoires, even though both spouses were highly intelligent and successful in their professional lives.

The lawyers involved in this case were saved from having buried a marriage that was emotionally still alive.

Successful treatment with a divorce outcome. Nellie and Sam had vacillated for several years over whether or not to divorce. They had long ended their sexual relationship, and enjoyed virtually no affectionate interchanges. Nellie distrusted Sam’s financial dealings. Sam was non-disclosive to her about his financial situation. Nellie and Sam did not fight at home, primarily because they did not want their children disturbed by fighting; but they interacted only minimally and at arms’ length.

Therapy, which totaled approximately 6 sessions, clarified that neither spouse was willing to make any changes that might warm their relationship. They mutually agreed to end the marriage, and requested that couple treatment be continued for several more sessions to help them decide how to tell the children and how to implement separate domiciles.

In sum, while Nellie and Sam were not willing to breathe new life into their dead marriage, they used therapy to bring their marriage to a non-argumentative emotional closure. Disengaged emotionally, they then could work with their lawyers on financial and parenting disengagement. That is, therapy enabled the couple to land the plane of their relationship so the lawyers then could help them safely disembark.

Divorce, with successful individual follow-up treatments. Bill and Lilly had long endured a stormy relationship. Both seemed to want to end it, but Lily, whose lawyer referred the case to me, still clung to hope that somehow the marriage could be saved. During the course of brief treatment (four sessions), Bill decided he would file for divorce. Both spouses then elected to continue for several additional sessions of individual treatment with me.

Bill’s individual treatment goal was to grieve the death of his first wife. With help lifting the blockage, he was able to experience the flow of a normal grieving process.

In her individual sessions, Lily wanted help accepting that the marriage was ending, understanding why and how this outcome could be in her best interests, and staying positive during the divorce process accepted that Bill was not interested in becoming the kind of husband she wanted. The several sessions enabled her to let go of a chronically undependable relationship that had provided economic security without the emotional sustenance or commitment she craved.

Lily augmented her therapy with a marriage communications skills course (Power of Two) to upgrade her collaborative communication skills. Her long-standing habits of complaining and emotional escalations had made her prior relationships difficult and created turbulence in her relationships with her adult children. She learned to express her preferences in positives (“I would like…” or “My concern is …”) rather than in negative “don’t likes.” She also learned to monitor her emotional intensities, withdrawing from situations where she was escalating, so that she interacted only from an effectively calm and positive emotional stance. At the end of therapy and skills training, Lily’s predominant feeling toward the divorce was relief. She was glad that the frustrating marriage had been terminated with a clear ending, and, with her new collaborative interaction skills, looked positively toward a better future.

A lawyer’s perspective

I asked the lawyer who has referred the most cases to me if he would be willing to answer several questions for this book chapter. He expressed delight, and answered as follows. These are all direct quotes, excerpts from a lengthy conversation.

How do you decide who to refer for psychological services?

1) “Twenty years ago divorce lawyers were supposed to encourage people to stay together if at all possible. I still ask if they still love their spouse. If they say yes, I send them for therapy.”

2) “I send them when a person isn’t emotionally ready to get divorced, and is open to getting help. Some people need to explore a last chance at saving the marriage. Like that guy from Elbert County. He was so scared of divorce, and so depressed about it, but he needed a reality check. You could see it was an impossible marriage, and you worked with him. You started out seeing if there was something to salvage. You’re very good at giving people a reality check so they can accept its time to get divorced.”

3) “Sometimes people get frozen and can’t go forward with the divorce. Like L (Lily, described above); she wanted so much for her husband to love her.”

4) “When a marriage is broken from infidelity, the trust is broken. Sometimes it can be rebuilt and sometimes it can’t. I’m thinking of L and R. I sent them to you in hopes the marriage could be rebuilt. They’re still together.”

5) “I really look if there’s something to save. If there is, I send them to you to save it, or, if there isn’t something left to save, for you to be brutally honest with them. Then I want you to help them face what’s to come and help them work collaboratively together to get it done.”

6) “I have occasionally sent people who are having difficulty communicating after the divorce. You help people communicate about their children. You help them talk about their children so they’re not blaming each other.”

7) “When there’s parent alienation syndrome, during or after the divorce, the alienated parent doesn’t know what hit them. They need help.”

8) “If I know the person personally who’s in a divorce, then I especially send them.”

What do you look for in a therapist?

1) “I look at the results. I’m really proud of how many marriages we’ve saved. We’ve saved a lot of marriages. We saved 7 marriages in one year. I’d say of the ones I send, a larger percentage you save their marriage than that don’t (sic).”

2) “I think you have a good approach because you don’t waste time. You make them communicate with each other. You roll around in your chair [I do therapy in a chair with rollers so I can move in close when the patients need help, and pull back as they can talk together with less support] and get in their face [I think he’s referring to how I roll in close to a spouse I want to work briefly with one-on-one] and get them to start doing things different. I sent one case, and a few days later I saw him in the gym reading your book [on marriage communication and conflict resolution skills].”

What about you, or about your ideas about law, do you think has led you to refer so many clients for therapy?

“I’m careful not to try to become their therapist. In court this morning a lawyer was meeting with the children. I try to know my limits and keep boundaries. I’m not psychologically trained. Lawyers need to know their boundaries. Psychological issues need to go to a therapist; we take care of their legal issues. And the nice thing about having a therapist I trust is I can say ‘This is a psychological issue. You need to talk about it with your therapist.’”

What else might you add for the benefit of therapists who may be approaching lawyers for referrals?

“I just hope you’ll stay in business for a while, at least for the 8 years until I retire. If a marriage maybe can be saved, I send them to you. If it can’t be saved, you’ll be honest with them. And if it can, you’ll work your butt off to save the marriage. That’s what therapists should do.”

How has working with divorce lawyers changed my practice?

Having been in practice now over twenty-five years, I enjoy challenging cases. Couples on the brink of divorce definitely fit this bill–and keep me humble. I can lead horses to water but there’s definitely only some who will let me help them drink.

At the same time, the referrals of all-but-divorced couples have provided a testing ground for my writing. I do not have access to academic lab facilities, but I write on theory and techniques of therapy and do need ways to test if what I write is valid or not. The lawyer referrals result in case after case where a divorcing couple comes to treatment dramatizing all that my writing says couples should not do. By following the therapy theory and methods that I have written about in my books, I see the same couple gradually build the kind of loving marriage that they had hoped for when they had said “I do.” The couple’s transformation validates the theories I have presented in my publications.

In addition, saving a marriage is like saving a life. It is extremely rewarding to help struggling couples reach the point that they can enjoy the many blessings that that come from a strong and loving marriage.

Reference List

Heitler, S. (1990). From conflict to resolution. New York: Norton.

Heitler, S. (1992). Working with couples in conflict [audiotape]. New York: Norton.

Heitler, S. (1994). Conflict resolution for couples [audiotape]. Denver: Listen-to-Learn.

Heitler, S. (1995). The angry couple . Denver: TherapyHelp.

Heitler, S. (1997). The power of two: Secrets to a strong & loving marriage. Oakland: New Harbinger.

Heitler, S. (1998). Treating high-conflict couples. In G. P. Koocher, J. C. Norcross, & S. S. Hill (Eds.), Psychologists’ desk reference. New York: Oxford.

Heitler, S. (2001). Combined individual/marital therapy: A conflict resolution framework and ethical considerations. Journal of Psychotherapy Integration, 11, 3, pp. 349-383.

Heitler, S. and Hirsch, A. (2003). The power of two workbook: Communication skills for a strong & loving marriage. Oakland: New Harbinger.

Heitler, S. and Hirsch, A. (2008) The Win-Win Waltz (dvd). Denver: TherapyHelp.

Resolution, Not Conflict; Dr. Heitler's blog on Psychology Today
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