Secrets of a Successful Divorce Mediation

04/21/2015 12:35 pm ET | Updated Jun 21, 2015

As a former litigator turned mediator, I'm frequently asked why divorce mediation works. My response is a list of benefits: "faster, costs less, resolves conflict, calms emotions instead of amping everyone up." But today, when reading Teri McCowen's blog on about the power of listening, I realized I haven't been answering the question of why mediation works. Teri hit the nail on the head in her description of what it feels like to be with a master listener:

[T]he greatest gift you can give someone is listening by giving them all your attention and focus... I have a friend who is an incredible master at this. She listens with all her focus and being, leaning toward you, making eye contact, her attention on you and only you. There are no distractions as she listens. She will ask insightful questions and clarify things you might have said to help her understand better. She makes you feel as if you and only you are the most important person at that time in that moment. I always walk away from our conversation feeling validated, truly listened to and, strange as it may sound, more confident. This is what the gift of listening can do.

"Bingo!" I thought as I read this, "That's exactly why mediation works when done right." A mediator's job, first and foremost, it to be a master listener. Certainly, a mediator must bring to the table more than just listening skills, but the listening is key because a case won't resolve unless both people feel heard and respected.

As Teri points out in her post, genuine listening is difficult and the inclination is to interrupt, try to fix it or want to stop the uncomfortable feelings a person's story invokes. I think this is normal for everyone. As a professional who practices listening every day, I still have to consciously commit to this process as I walk into each mediation. Facilitating a divorce mediation requires:

• Listening with an open heart and mind
• Letting each person speak freely and uninterrupted (i.e., keeping my mouth shut at the right times)
• Staying emotionally present as the couple face the pain and disappointments that led them there
• Allowing them to experience the fear and uncertainty of the future without trying to fix or minimize it
• Asking questions and clarifying what they've said, with care and compassion
• Honoring what each person believes is a fair settlement

Teri wrote that good listening doesn't mean you have to like what the person is saying or even like the person. I would add to this: when it comes to divorce mediation, you can honor what a person is saying without having to agree with their desired outcome or even their perspective of reality.

I've also observed what Teri noticed -- that people feel more confident inside after someone has really listened to them. Feelings and emotions are like the crying baby that must be picked up and soothed before anything constructive can happen. In mediation, validating and giving a person confidence, by listening and empathizing, doesn't lead the person to take a more irrational position, it generally has the opposite effect. It allows people to relax a bit and stop holding onto their position so tightly. The less defensive and less emotional a person becomes, the greater the chance he or she can have a logical, intellectual discussion about the issues at hand. (The only exception to this rule is a spouse with a personality disorder. Listening and validating often won't result in a shift when you're dealing with a personality disorder.)

Another interesting thing I've observed through the years is that when the mediator listens and honors what one spouse is feeling, the other spouse can sometimes make that leap too and begin to understand their spouse's perspective. That's the start of real communication which may not have occurred much in the marriage. I've had cases where listening and communication begin in mediation and ultimately lead to a smoother co-parenting relationship after the divorce is over.

Sometimes this doesn't happen and the spouses still can't hear or relate to one another's perspective, even after mediation, but as long as the mediator listens and can honor each spouse's feelings, that can be enough to get the parties to a resolution.

So what's the takeaway from all this, if you're in divorce mediation
or considering it?

1. When your mediator is listening, validating and empathizing with your spouse, this is a good thing. It may not feel good, it may bring up the "not true! what about me!" feelings (typical of what one feels in mediation when the other person is getting to talk). But know that your mediator's focus on your spouse is intentional and necessary to get your case to a settlement. It doesn't mean your mediator is taking sides or agreeing with what your spouse is saying. It doesn't mean your mediator likes your spouse more or that he doesn't believe your version of the facts. You have a good mediator if he is intently listening and nodding his head and asking your spouse clarifying questions and summarizing what your spouse said (as long as you get your turn too).

2. If your mediator is like me, she is listening intently and asking questions not for the purpose of making judgments or deciding who's "right" or "wrong," worthy or not worthy. Instead, she is gathering information to understand who you and your spouse are, what's important to each of you, the circumstances and legal issues in your case, and how she can facilitate your communication to help you reach a settlement.

3. If you can commit to being a good listener in mediation (which granted, is quite a challenge), this improves the chances that your mediation will be successful. People often ask me what to bring to mediation to make the process most productive, and my reply is "a detailed list of assets and debts, tax returns, pay stubs, any tentative agreements you have reached, a list of issues concerning you." From now on, I'm adding to the top of the list "your best listening skills."

When at least one spouse in mediation has good listening skills (and can listen without interrupting/attacking), tension and anger bubble up but then get diffused, which keeps the settlement discussions on track. And when I have two spouses in the room able to validate and empathize with the other, we more quickly develop the rhythm and cooperative energy in the room that leads to a satisfying outcome for both.

4. When I see one spouse listening, validating, asking questions and empathizing, I don't assume he or she is agreeing with what is being said or backing down. It means to me that this person is mature and kind enough to honor and respect their spouse's feelings, in spite of it all.

Truly, the real secret of divorce mediation is that simple. Feeling heard, honored and respected by the person you loved enough to marry is often just as important as the issues, themselves.