Nowhere is that more true than in the area of divorce advice.

Yogi also said, “90% of this game is half mental.” Also true if you are contemplating, or involved in, a divorce.

Almost always, the mindset of the people involved in the divorce is what will eventually dictate the length, complexity and difficulty of the action.

If you want to end your marriage as cheaply and as painlessly as possible, do yourself a favor and heed well this advice.

1. DO NOT THINK OF DIVORCE AS A WAR!

You are not involved in combat, you are engaged in negotiation. In negotiation you gain more by being reasonable and thoughtful. If you consider the other side’s positions carefully and respond in a measured manner you will find that you achieve much more than by being contentious.

2. DO NOT DEMONIZE YOUR SPOUSE!

True you are no longer getting along as you once did, but that does not mean that your wife or husband of all these years is now “that bitch” or “that bastard”. Such a mindset does nothing to advance your goal of ending your marriage with the least heartache or expense possible. Really, try not to think that way.

3. DO NOT FAIL TO MAKE CONCESSIONS!

Some people think they are going to get everything they want and that they are not going to give an inch on any issue, or concede any property. Life doesn’t work that way, nor should it. You are involved in a negotiation. You must be mentally prepared to give some to get some. In negotiation a party who gives easily will often find that they get more in return. We see it happen all the time.

4. DO NOT THINK YOU ARE ABOVE THE GUIDELINES!

The State of California has guidelines concerning the amount of support an earner might have to pay to a former spouse, or for the support of one’s children. It is true that these are “guidelines” and are not carved in stone. On the other hand it is also true that if there is going to be wide deviation from the guidelines, there better be a compelling reason why. You will be better served to get it in your head that these guidelines are there for good reason and they apply to you. I get this all the time in mediation. The chief earner is somehow under the impression that there is some sort of giant “loophole” through which they can avoid paying any support to their former spouse. There is still room to negotiate, but do not imagine that somehow these guidelines are for everybody else and not for you.

5. DO NOT THINK THAT “WORDS DON’T COUNT”!

It is amazing how people can say truly hurtful things to each other and not consider the consequences. Bad words delivered in a way calculated to cause pain are a form of abuse. You may think that you can say anything you want to each other with impunity, but the fact is that you will always pay for inflicting pain. What is more, the person delivering such abuse does damage to themselves and diminishes their own humanity. But that is the subject of another article. Trust me; hold your tongue lashing and you will get through the process with a lot less pain.

6. DO NOT FAIL TO GET THE HELP YOU NEED!

With the possible exceptions of death or serious illness, there is no more stressful time in life than going through a divorce. People tend to do all the wrong things at this time. Internalize their feelings. Self-medicate. Withdraw from life in general. Alienate their friends. It all happens during a divorce. We at Liaise do not practice therapy, but we are great believers in the benefits of therapy. Most health insurance policies provide for some mental health counseling. Get some. It is usually pretty calming to sit with a professional who has been there before and get some sound advice on how to handle the feelings and sorrows you may be facing.

7. DO NOT THINK YOU WILL GET A “FREE RIDE”!

It is distressing the number of times I have assisted couples in a dissolution where the hardest part was shaking one side from the misconception that because they had been married for over 10 years their former spouse was some kind of indentured servant who had to take care of them until death! That is not the case.

A Judgment of Dissolution in California has the following words printed right on it:

NOTICE: It is the goal of this state that each party will make reasonable good faith efforts to become self supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating spousal or partner support.

This is an EXPRESS public policy and it means just what it says. California wants everyone to stand on their own two feet. This means that if you need training to re-enter the work force, have some support earmarked to get training and start doing what you can to get employed. It is good for you and it is your duty under the law. Of course there are sad situations where one party cannot reasonably become employed, but that is a rare situation. The fact is that happiness and self-satisfaction are often the by-products of good work and one way to be fully engaged in life is to be purposely striving towards a worthy goal.

8. DO NOT LET YOURSELF THINK THAT THINGS WONT GET BETTER!

Absolutely this is one of the worst periods of your life. Without a doubt things look as gloomy and foreboding as you could imagine. As bad as things may be, you have to believe that your life is going to get better! Just as in any disaster, a common trait amongst those that survive divorce well is a Positive Mental Attitude. You need to adopt such an attitude and there is good reason to do so. We at Liaise see it time after time. A spouse going through the divorce process is initially, and understandably, miserable. Those who strive to keep a PMA soon realize that previously they had been living in a toxic environment and they are now taking purposeful steps to move forward in their lives. Upward advancement is enlightening and it seeps into your psyche, improving your outlook and brightening your future. Keep your head up and your feet moving forward. Things do get better.

9. DO NOT LITIGATE! BE SMART, CHOOSE MEDIATION.

Lastly, and most importantly, don’t make the mistake of suing your spouse to end your marriage! If you think about it, the very concept is absurd. If you were ending, for example, a 12 year business partnership, 99 times out of 100, all you would have to do is sit down with your partner – divide up the assets – divide up the liabilities – shake hands and part ways. Ending a marriage can be done the same way. It is a bit more complicated because there can be issues of child and spousal support, but the important point is that it doesn’t have to be a battle! The expert mediators at Liaise can help you and your spouse navigate through the complexities and arrive at an agreement that is the negotiated blueprint for ending your marriage. That agreement is presented to the Court and becomes the Judgment ending your marriage. You never have to appear in Court. You save 10s of thousands of dollars. You don’t ruin your family by engaging in a huge fight and you are better able to get on with your life.

So like Yogi Berra says, don’t make the wrong mistake and don’t forget that the mental part is half the battle.

Do yourself, your family, and your financial well being a favor and choose Liaise Mediated Solutions, LLC to help you navigate the treacherous waters of managing the expensive and painful situations of dissolution.

This is true of romantic couples being observed in Scenes from an Italian Restaurant, families in general and, these days in particular, people living in and dealing with Common Interest Developments [CID] and Home Owner Associations [HOA].

Typically CIDs provide for the individual ownership of a single apartment style unit along with the right to use common building areas.  CIDs are managed by HOAs, to which all owners belong.  A board of directors, from the ranks of owners, is elected and charged with collecting monthly assessments to pay for day-to-day building expenses and to save money for the upkeep and replacement of major building components. In California there are 34,000 CIDs where 8 million people live, or about 24 percent of the state’s population.*

At this point in time many CIDs and HOAs are facing a perfect storm of financial problems.

First storm, declining real estate value.  Although the cost of maintenance and replacement of building parts has stayed the same or gone up, the value of the managed real estate has gone down.  If a building has foreclosed units, or distressed owners letting their unit go into foreclosure, all of the units in the building see their value go down due to the fact that the “comparable sales” of units in the building hit an all time low at foreclosure or repossession of units.

Second storm, declining contributions to building support.  Many condo owners have lost their jobs in this economic downturn and have seen their condo investment shrink to nothing, or less than nothing – where they now owe the bank more than their condo is worth.  Many HOAs are having trouble collecting monthly dues from 100% of their members and this shifts a greater financial burden on to those who can pay. As the HOA collects less and less money each month, making it more and more difficult to pay ongoing expenses, and prepare for major repairs, HOAs are exhausting funds that were earmarked for renovations to pay for monthly expenses.  So, when the need for a significant renovation presents HOAs are forced to request a “special assessment”.  This means that the HOA demands that owners reach into their pockets and pay for the needed repair in addition to their regular monthly dues.

Third storm, declining access to funds from lenders.  Add into this caldron the impact of the banking meltdown where lenders are now loathe to loan money to a CID that is in less than pristine financial health.  So an HOA with a few homeowners facing foreclosure, or in arrears on monthly dues, can’t borrow money to pay for the major event that was inadequately anticipated or saved for.

For instance, imagine the stress of owning a unit in a 40 unit building where 4 units are not paying their monthly dues and are facing foreclosure.  The HOA has effectively lost 10% of the money it needs to pay for PG&E, garbage collection and water, to name a few items.  Now suppose the HOA had only about $25,000 in “reserves” to pay for major renovation and the first rain of the season reveals that the roof, which has limped along with band-aids for that last few years, is now facing imminent catastrophic failure and must be replaced at a cost of $225,000.  Not a pretty picture, but one thousands of Californians are facing variations of at this very moment.

So like Bill Joel said when the money gets tight, they start to fight.  We at Liaise^® are serving more and more HOAs and owners to assist in finding common ground that will allow the purposeful management of this conflict.

In the old days, if an HOA had a unit owner that was in arrears on monthly dues, or had failed to pay special assessments they would follow a simple routine.  Commence collection, and then legal action, and allocate all the costs of collection to the homeowner.  The money would just come out of the proceeds of the sale into the ever-increasing California real estate market.

Nowadays, if a homeowner is contemplating abandoning their unit to the bank, it does no good – and perhaps a great deal of harm to the CID – to take that old worn path to resolution.  Today, the last thing a CID wants to do is to force an owner into foreclosure if there is no “equity” in the property to pay for arrearages.

Liaise mediators are also finding that relationships between condo owners and board members as well as relationships amongst fellow condo owners are experiencing a significant uptick in disputes and general conflict.

Homeowner Associations and professional property managers should develop a new approach to managing this type of conflict.

The first line of defense should be to engage a professional, neutral mediator.  Many times there are paths to resolution that can be revealed through mediation that could never be discovered through the immediate engagement of adversarial collection methods.  A CID is after all a community. Like a community it should come together to explore possible ways to deal with community problems.  This approach serves the best long term interests of the CID as well as the individual homeowner and is the most cost effective, expeditious way to calm the waters in these turbulent times.

*Common Interest Developments: Housing at Risk? By Julia Lave Johnston and Kimberly Johnston-Dodds – Requested by Senator Tom Torlakson.  August 2002.

I am reminded of the classic childhood scenario with which so many mothers and fathers are familiar. When two kids have to share a piece of cake, you let one child do the cutting, and the other child then gets to choose which slice she wants. By this simple device you Impose fairness on the one doing the division that almost always results in a square deal.

It is amazing how the classic solutions hold up. Very often this is almost the exact same process as found in mediation. With only a few variations.

Often in mediation a particular asset can’t really be divided, so instead one party has to buy out the interest of the other party. Or the asset has to go on the market for sale.

When neither party wishes to have actual possession of the asset, the solution is simple, put the property up on ebay, or Craig’s List, or find a broker and divide the proceeds after cost of sale. Of course there can be disagreement as to who will serve as broker, but in our experience here at Liaise, that hurdle is easily overcome.

The challenging circumstance is when there is “sentimental” or other non-monetary value associated with a piece of property and that property cannot realistically be divided or shared. Then instead of the kids doing division by knife, a different form of imposing fairness on the participants is called for.

There are some simple methods for imposing fairness into this division as well. One method is to have each party write down the best number that they are willing to take for their interest in the property. But, they are also told that whatever number they write down, they must also be ready willing and able to pay to the other side for their ownership interest in that property.

It is amazing what happens when someone is forced to come up with a number that is at once what they will sell for, and what they will pay to buy. A great leveling out occurs and parties that thought they were tens of thousands of dollars apart find that they are really only separated by a few hundreds of dollars. At that point it seems that a resolution is never far away.

To carry the “cutting the cake” analogy a bit further, in mediation parties can often “get beneath” their stated positions and a piece of cake can be cut to represent the value that one side may attach to various parts of the cake. For instance, let’s say that this particular piece of cake has an icing rose in one corner. It may turn out that one party really loves a little rose made of icing and the other party doesn’t fancy them that much. In such an event, it may turn out that this particular piece of cake is divided so that one side gets just the cake under the icing rose and a much larger piece of cake goes to the other side.

A practical example of this analogy recently occurred in a Liaise mediation where a brother and sister were left undeveloped land by their father. The property was about 50 acres with an apple orchard on about 5 acres. One beneficiary really valued the apple orchard, the other, not so much. Through mediation this fact came out and the property was divided so that the sibling who wanted the orchard got that part of the property, but the other sibling received more land.

There are many pathways to resolution, the key to finding them is engaging in free and open communication so that all possibilities are revealed.

Or, to put it another way, it’s never too late to mediate.

As a civil attorney for over 20 years I would always urge opposing counsel to move our respective clients’ case to mediation at the earliest possible time.  The sensible, righteous attorneys would agree and we would commence the process of choosing a mediator to help our clients move as quickly and inexpensively as possible to settlement.

Far too often my counterpart would respond to an offer to mediate early with words to the effect that, “this case is not yet ripe for settlement”.  Let me translate, not ripe for settlement is lawyerese for, “I have not yet billed enough hours to this file”.

Perhaps I am being cynical.  Of course there are cases where the operative facts are not fully known by one side or the other, or where the brilliant examination by the attorney taking a deposition will prove to be the determinative factor in winning a case.  But let us not forget that this process is known as discovery and as often as not the participants in the lawsuit know all there is to know about the facts and the discovery process is a very expensive waste of time.  It is rare indeed that the response to an interrogatory, request for admission or other discovery tool yields anything of true merit to your case.  Discovery is a game where highly skilled lawyers are crafting responses that are guaranteed to yield nothing of value to the other side.

In a family law case the foolishness of delaying mediation to conduct discovery is even more pronounced.  Far and away most married couples know all there is to know about their assets and debts.  There may be situations where one party has a secret Swiss bank account or hidden diamonds, but that is a rare circumstance indeed.  Mostly couples in a marriage  know where one another works, they know what the W-2 looks like, they know where they bank and they have seen the Profit Sharing or Retirement Plan statements.

There is no need to wait to begin mediation.  What is more, the legal process the mediation navigates requires that the parties disclose to one another all assets.  This means that the need for discovery is greatly reduced because the law requires each party to make full disclosure to the other.  Accordingly, the earlier the mediation commences the more money the parties can save.

Sometimes we at Liaise hear from people engaged in a nasty, expensive legal battle and they are unsure if they still “qualify” for mediation and what can they tell their lawyer?

All legal clients should think of themselves as legal “consumers”.  It is your case, it is your problem and it is your money!  Your lawyer works for you at your pleasure!  At any moment that you think it is time for a new direction, all you need tell your lawyer is to return your file, you want to try mediation.  They are ethically and legally obliged to do as you say.  You are the boss.  If you are concerned that your lawyer may not be able to get along without the money she has been charging you each month, don’t be ridiculous.  As soon as your money runs out you are going to find out that your lawyer is very much like the dryer at the laundry mat.  When your dimes stop going in she stops turning.  Why should you be more concerned for her financial well being than she is for yours?

Sooner is best, but it is never too late to try mediation.  Simply call Liaise and we will contact the other side and give them the good news.  The good news is that if they are willing to act like an adult, sit down and rationally discuss the issues, there is a cheaper, faster, better solution to your legal problems.

So OK, here is a try, but it turns out that the hard part is picking only 10 reasons.

1. Never Go To Court.

It seems that many people have a fear of going to Court that is closely related to a fear of public speaking. Being before a Judge is not like being before a firing squad, but you would never know that from the way many people feel about the prospect.

With mediation you agree on the disposition of your dissolution and the entire matter is handled on paper, through the mail, and no Court appearance is necessary.

2. Control Over Decisions.

In case you haven’t heard, the State of California is in a financial meltdown. This means that the resources available to the Superior Court of California Family Law Bench are increasingly sparse. Therefore the time that Judges, Commissioners, Clerks, Family Court Services, Court Mediation Services and any other State funded group, will be stretched thinner and thinner. Add to this mix the ever increasing number of “self-represented” litigants and pretty soon the experience of litigating your divorce will more resemble a trip to the DMV than the venerable and profound hearings that were experienced in the past. Really, given the cutbacks and furloughs going on now, how much time do you think a harried Judge has to contemplate and ruminate over your case? Besides who is better positioned to diagram the future of your family, you or some state employee?

Much better to spend all the time you need working with your spouse and a Liaise® trained professional to carefully craft and shape the future direction of your family. Take control, act like a grown up and plan for the future.

3. Less Stress.

Suing your spouse to end your marriage has always struck me as absurd. Summons, Petition Response, Order to Show Cause, Motions, Interrogatories, Depositions. Give me a break! The participants were married to each other for crying out loud. Even if there are now irreconcilable differences, it doesn’t mean that they cannot engage in a civilized discourse and provide for the orderly division of property and agree upon necessary and adequate child or spousal support within the framework of the law. Having been a trial lawyer for over 20 years I can tell you that litigation is crippling in the stress it creates.

Mediation, as compared to litigation, is a walk in the park. Liaise® mediators insist upon respectful, non-threatening communication and the process is tolerant, enlightened, and downright refined as contrasted with traditional lawsuits.

4. Neutral Perspective.

A Liaise® mediator is strictly in the middle. She is not on one side or the other. She is the advocate of neither party; she is the Devils’ advocate. She asks the tough questions and steadily moving the process towards understanding and settlement.

On the other hand a lawyer, unless providing your service through a Legal Aid or Non Profit Center, has a profit motive. This is not an indictment, it is simply a fact. If you ask a barber how you look, he’ll say you need a haircut. If you ask a lawyer what you need to do, she’ll say you need to sue. Please don’t get me wrong there are many excellent, honest and dedicated members of the family law bar and it has been my privilege to know quite a few of them. But every one of those straight talking righteous lawyers can tell you horror stories about other lawyers. Even if you hire the most virtuous lawyer you can find, the other side might hook up with a barracuda and your legal fees will be astounding. Better to engage a single professional neutral and work it all out without paying a couple of lawyers to fight.

5. Most Cases Settle.

Did you know that in California, most lawsuits settle? There is some uncertainty as to the actual statistics, but the number generally given is near 90%. Almost no cases go all the way to a trial.

Why go through the expense and heartache of setting yourself into a “litigation” mentality if the probability of settlement is overwhelming? So much smarter to begin preparation, mental and tactical, for settlement from the onset of your dispute and skip the unnecessary umbrage.

6. More Enduring Agreements.

When people have a “solution” imposed upon them by an outside agency, it is simply human nature to immediately begin scheming to thwart that imposition. Sure, a litigated divorce may specify a court ordered child pick-up and delivery schedule, but life means changes. What sounded just right in May no longer works in December. So much better to work with your spouse and develop the tools you need to deal with the changes that inevitably occur. What is more, the reluctant cooperation and “unintentional” foot dragging that often comes with imposed conditions is a formula for ongoing strife, friction and misery – even if it never rises to a level that justifies having the Court act to try and remedy the obstreperous conduct.

People who work together to create plans that they voluntarily agree upon are vested in those plans. There is a much higher likelihood that those people will abide by their agreement and have less conflict in the future.

7. Lower Cost.

In June of 2008 the Wall Street Journal reported that the average cost of a litigated divorce is $78,000 and the average cost of a mediated divorce is less than $7,000. Factoring in all the other benefits of mediation, it is incredible that anyone would choose to litigate over mediation. If you have children and are contemplating divorce you can choose litigation, or you can choose a more comfortable and affordable retirement.

8. Ability to Cope with Future Issues.

One of the foremost benefits that the parties to mediation achieve is the communication skills necessary to effectively achieve agreement with their spouse. This may sound simple and not that meaningful an achievement, but the process of learning how to “get to yes” is just like any other talent. The way it develops is through 3 key elements. Practice, practice, practice. Once the parties to a divorce have been through the process, have spent the time reasoning with one another, they oftentimes find that there is a carry-over and they can more easily deal with other issues as they present during their ongoing relationship. People often tell us that they have never before experienced this sort of give and take with their partner. It is a great set of skills to cultivate.

9. Easier

All of the reasons set forth above make it abundantly clear that mediation is the easy way. No Court. More control. Less stress. Lower costs. It is a decision that is commonly referred to as a “no brainer”.

10. Harder

How could the decision to mediate be easier and at the same time harder?

The answer is simple. If you merely want to be a passenger and have the issues of where you are going, the route you’re going to take, the speed you’re going to travel, the rest stops and how long and hard you’re going to drive decided by someone else, maybe mediation isn’t for you. But if you have the courage and smarts to make your own decisions on how you are going to live your life, you are a good candidate for mediation and should take the first step and contact Liaise Mediated Solutions, LLC to get the process going.

Unfortunately, every chain of communication is fraught with imperfections and opportunities for ambiguities, misunderstandings and miscommunications.

Let’s break the chain down into some of its component links and examine them.

First, an idea or concept for communication is formed inside of a person’s head as thought.  That concept, or thought, is then translated from thought to language inside of that person’s head.  Right there is the first opportunity for error.  How many times have each of us struggled for just the right word to express our true meaning?  English is a versatile and powerful language but it is sorely lacking in many areas for expressing just the right nuance of emotion or feeling.  Or, to be fair, perhaps the fault isn’t so much the language but the mastery of the lexicon that is necessary to allow one facile expression.  We can’t all be poets, but sometimes it is indeed the artistic, free form illustration of our innermost thoughts that is called for.  One would need to write a great song, or a beautiful sonnet, or a profound haiku to give true voice to certain emotions.  How many of us are in any way up to that task?

Second, that simple thought, imperfectly translated into speech, must now be transmitted to the intended recipient.  Here is another area ripe with the possibility of error, transmission.

As we all know, oftentimes it is not what is said, but how it is said, that delivers the true message.  A simple phrase with the wrong emphasis can say many different things.  For example, one can say, “here, take it” in such a way as to convey a loving gift openly and freely given.  Or, with a different tone and emphasis one can make the recipient feel like an ungrateful wretch.  Another example is two simple words, “excuse me”.  Said one way it is a plain spoken exposition of a polite request. Said another way it can be the sarcastic comic catch phrase that launched Steve Martin’s career in entertainment.   It’s all in the delivery.

The above doesn’t even begin to discuss the full spectrum of “non-verbal” communication that is constantly broadcast outward from a person.  Those non-verbal cues can either reinforce or belie a message, depending on the circumstances.  The topic of non-verbal communication will be the subject of lengthy consideration in a future article.

The “transmission” by language is also subject to what I call “mechanical” interference.  The speaker can have an accent, or a speech impediment, or it can be a noisy environment.  The “receiver” can be hearing impaired, or inattentive, or predisposed to hear things in a positive or a negative way.  All of these elements, and more, can contribute to the diminution of clear communications.

Third, is the reception of the transmission, the “translation” of the language into thought in the head of the recipient and the cognition of the message.  In addition to the mechanical interference noted above, this scenario also lends itself to myriad mistakes of understanding.  Words are susceptible of multiple interpretations as well as simply not knowing their intended meaning.  Ideas or concepts meant one way can be taken another.  A fundamental concept one party may be treating as a basic assumption can be a completely unheard of notion to the other party.

Given the difficulties cited above, not to mention the further complications that arise when people are attempting cross-cultural communication, as happens so often in our modern society, it is a wonder we can communicate with each other at all.

If I had to identify the single most effective interpersonal communication tool available to the effective mediator, I would have to say it is the development of what is known as “active listening” skills.

Active listening allows the mediator to at once take positive steps to assure that she is receiving and interpreting correctly and to assure the transmitting person that she has been heard and understood.

Active listening is a highly effective communications tool, simple to learn and master.  When done properly it is the surest path to getting beneath superficial positions to reveal true interests.  I am dismayed at how few mediators bother to practice this effective methodology.

To practice active listening the mediator must engage several techniques that when used together result in an assurance of effective communication.

First, the active listener must pay close attention and listen carefully.  Watch the speaker’s eyes and mouth.   Focus in on what is being said.  This seems to be self evident, but when you actually center in and do it, you become aware of how often your mind would wander and your attention would drift if you were not making the effort to hone in and concentrate on the message.

Second, when the speaker reaches a natural break point in the narrative, the effective active listener should interject with a thoughtful re-articulation of what she has just heard.  This restatement should be prefaced with words that explain that the listener is attempting to clarify her reception of what she has just heard and recognition that her understanding may be imperfect.  For example, “correct me if I am wrong, but what I understand you to be saying is……” or,”so, if I am hearing correctly, to put what you are saying another way, your position is …..”  The active listener should make certain to get a clear, unqualified positive response to her re- articulation of the speaker’s message.

If the speaker qualifies or modifies the re-statement in any way, the active listener must re-state until she gets the speaker’s position just so.  When that positive acknowledgement of understanding is received the active listener should encourage the speaker to continue and re-engage in the active listening at each significant point in the discourse until the speaker has said everything that she wanted to say.  Do not be put off if you have to re-state more than once or twice at any given point or topic.  Multiple re-articulations are almost always a positive indication.  It shows that the speaker is hearing the active listening feedback and responding to it.  As often as not, the speaker is using the active listener’s input to sharpen her own thinking and the dialog is productively enhancing communications.

Admittedly, sometimes the active listening technique may feel hokey when you are doing it.  But when you are dealing with someone who is trying very hard to speak their piece and be completely understood, there is no more effective way to give that person the assurance that they have made their point.  You can often see the physical signs of relief in a speaker who knows that they have been heard.  Their posture relaxes, their faces smooth out and their voice has less stress indicators.  It is a rewarding event for both the speaker and the listener.

Very often mediation is a substitute for a “day in court”.  If the participants come out with the feeling that they have truly been heard and understood they are more likely to come away with a feeling of satisfaction from the process.

To constantly test the tensile strength of any chain of communication you are attempting to create, apply the test of active listening early and often to assure the best results.

Imagine the planning and logistics involved in such a task. The ships, the planes, the men, the fuel, the tanks, the jeeps, the food, the ammunition, the hot water, the soap, the razor blades, the shoes, the tires, the tents, on and on and on. It boggles the mind.

One pithy, and very valuable lesson Eisenhower passed on to those of us who need to plan and carry out those plans, on any level, is his famous quote that I call up in almost ever one of my meditations: “Plans are nothing, planning is everything”. There is great wisdom in that simple phrase.

In other words, like every military leader, Ike knew that no plan survives intact its first contact with the enemy. The key to success is not to be blindly tied to any one plan, but to maintain flexibility in your thoughts and in your actions. The most valuable element of any plan is the time, thought and effort that went into conceiving and putting the plan down on paper, not the plan itself. It is the acquired skills of planning that will carry you through difficult times when your best laid plans collapse. Those skills will allow you to accommodate unforeseen circumstance and unconsidered variables and quickly formulate a new plan. And when that plan needs to be modified, because things happen, and they always do, you will again be well served by your investment in learning planning strategy.

This is as true for creating a viable child custody and visitation plan during a marital dissolution [or as I prefer to call it a Marital Reorganization] as it is for building a bridge, or attacking an enemy stronghold in wartime.

Treat your plans as what they should be, disposable. Any plan is only your best efforts at strategy and tactics for the circumstances as you currently understand them. Try to build in flexibility for that which is unforeseen. If you are inflexible in your plans, you are preparing for failure. If you recognize that all plans are circumscribed by the limited knowledge at hand, you will be better able to go with the flow, roll with the punches and quickly implement Plan “B”, whatever that plan may be at that time.

Truthfully, the theme of this article started out as an attempt to contrast and compare Lincoln’s thoughtful attempt to illustrate how one should strive to approach obstreperous conduct with what I had thought was the naïve and implausible quote from the western homeboy philosopher Will Rogers, “I never met a man I didn’t like.”  Yeah right, I can think of a few people I could introduce to him to test that sentiment.

I was all set to have this article rhetorically ask Mr. Rogers, “Really Will…you NEVER met a man you didn’t like.  Really?”   I was going to go on and on about how the world, or people, must have changed.  How the SOB to good guy ratio has gone up over the years yadda, yadda, yadda.  And then I did a bit of research and found the true Rogers’ quote.  The famous phrase is actually a portion of a longer quote from when Mr. Rogers was referring to Leon Trotsky,

“I bet you if I had met him and had a chat with him, I would have found him a very interesting and human fellow, for I never yet met a man that I dident (sic) like. When you meet people, no matter what opinion you might have formed about them beforehand, why, after you meet them and see their angle and their personality, why, you can see a lot of good in all of them.”

Interesting.  Will Rodgers was saying essentially the same thing that Abraham Lincoln said 70 years earlier.  Even people who you don’t think you like, after you get to know them and try and see things from their point of view, you find that they are, like yourself, only human.  And like all humans there is good in all of them. This is a lesson well known to any experienced mediator.

Even when dealing with people who are obviously trying to sabotage and thwart the mediation process, if you are patient and take the time to listen to their side and see the merits of their position, you see the superior side of them.  You are then better situated to work with them to forge a path out of their dilemma and into settlement.

In point of fact, in the mediation I reference above, after many hours of hard work the fellow who was trying to get my goat and I actually got to know each other and by the end of a long day we had successfully managed the business dispute that brought him to my offices.  I am pleased to report that he has since referred several of his colleagues to Liaise^® Mediated Solutions, LLC.

Many times inexperienced litigants imagine that their case is unassailable and crystal clear to any disinterested third party to whom they may tell it.  They have been living with their dispute for so long and they have gone over and over and over it so many times in their minds that they feel it is self evident that their position is righteous.

People in this position naturally assume that any judge and any jury will see things exactly as they do and will award them every nickel they are asking.  To them it is literally inconceivable that there is any merit whatsoever to the position of the other side.  People in the throes of such an illusion, like a sleepwalker, must be gently brought back to reality.

In many ways Mick Jagger said it best, “You can’t always get what you want, but if you try sometimes, you just might find, you get what you need”.  This eloquent lyric is, in many ways, a mediator’s mantra.

Seasoned trial lawyers have all had the same experience, you go into court expecting to win – and you lose.  Sometimes you go into court expecting to lose – and you win.  The legal system is fraught with risk.  I hear people say that what they want is “justice”.  What they really mean is they want things to come out as they hope they will.  They need to be educated to the fact that “justice” is a process and not a result.

To assist these people I introduce them to the concepts of BATNA and WATNA.

Imagine, if you will, a trial.  At that trial the stars and the planets align just so and the evidence that is favorable to your side is all admitted while the evidence favorable to the other side is excluded.  Your lawyer is brilliant, cogent and persuasive while the opponents’ counsel is turgid and tongue-tied.  The jury after only a few moments of deliberation comes back smiling and beaming at you and enthusiastically award you every dollar you have requested.  You really, as they say, ring the bell and have the best possible day in court.  This is known as BATNA, or the Best Alternative to a Negotiated Agreement.

On the other hand, let us imagine the opposite.  Your lawyer can’t seem to get her point across clearly, the judge rules that your critical evidence is inadmissible and the jury panel all look and act as if they are the best friends of the other side.  They deliberate for only a few moments and come back to the courtroom scowling and frowning at you as if you have completely wasted their time and have no business being in a court of law.  They announce a verdict for the other side and award you nothing.  This is WATNA, or the Worst Alternative to a Negotiated Agreement.

Somewhere between these two extremes is where a mediated settlement lies.  Sure, you want everything.  But BATNA is not achieved at the mediation table; it is merely a benchmark by which one can measure goals.  Likewise WATNA is never conceded in a negotiation, it is just there to illustrate that one has to be realistic about one’s expectations.

Mediation can be, and often is, hard work.  You do have to try to get what you need.  There is, however, a safety in mediation knowing that the other side also has their BATNA and WATNA and has demonstrated their willingness to negotiate by coming to the conference table.  It is a sign of intelligent evaluation of one’s position to recognize that there are no absolute guaranties and it pays to be reasonable in attempting resolution.

So there you have it.  You can’t always get what you want, but if you try sometimes, you just might find, you get what you need.

No matter the type of conflict or dispute that you may find yourself dealing with, call Liaise^® Mediated Solutions, LLC and we will start you on the path to the best available negotiated agreement.

Mr. Suskind is a fascinating person and a direct participant in events that are both historic and instructive on how best to conduct American foreign policy in this important but highly sensitive area.

I was particularly taken with Mr. Suskind’s response to the interviewer’s query as to the effectiveness of so called “enhanced” interrogation techniques or what some are referring to simply as torture. Mr. Suskind said that such disturbing techniques do not work and all you get is highly suspect intelligence. Quite logically Mr. Suskind said that under torture what you will receive is anything the suspect thinks you want to hear to make the torture stop. Instead of engaging in torture Mr. Suskind opined that to receive truly productive intelligence you must engage in negotiation.

Once again the maxim that “everything is a negotiation” is validated. Whenever one party wishes to obtain something of value from another party the key is negotiation, or mediation, and not coercive persuasion. This is true in a union negotiating with management, partners dissolving a partnership or a husband and wife deciding on child custody and visitation issues following the end of their marriage.

Where one side to a negotiation has an advantage, tactical, monetary or psychological, the reliance solely on that advantage to obtain a disproportionate result in settlement is almost always a strategic mistake. If the disadvantaged side is forced to a specific result they will not be vested into the process and will not support the settlement. The undeniable truth is just because you can obtain a certain result using draconian methods, it is almost always better to forgo using the hardball style and obtain the same, or close to the same, result using negotiation or a mediated approach.

Imposed results on a weaker party cause resentment and if an opportunity for sabotage presents, you can count on things going wrong. Mediation will usually create a conflict management plan that the participants recognize as an effective balancing of the interests and therefore the parties are more likely to adhere to and respect the plan.

Whether you are involved in a nasty divorce, spiteful partnership dispute, malicious property battle, malevolent probate contest, or any seemingly insurmountable fight with an apparently implacable foe, call Liaise Mediated Solutions, LLC and we will start you on the path to peace.