Published: December 2023
Written by: Damary V. Stokes

A divorce can be a stress-induced, chaotic time in people’s lives.  Selling one’s home, splitting holidays with the children, and dealing with the reality of a one-income household can all bring on high emotions.  In most cases, the problem isn’t that high-conflict people are bad people or bad parents; they just have more limited coping skills and need help reframing their perspectives in order to work cooperatively for the good of the family. As a mediator, being empathetic can be one of your “superpowers” in situations where both parties are high on emotions.   Empathy absorbs tension. 

A structured mediation process with appropriate support can make all the difference.  So, how do you define a high-conflict case? Some will say that all divorce cases are high conflict.  In my experience, however, it usually involves two people with deeply embedded hostility, whose modality of dealing with stress is attack.   As a mediator, being able to DISARM the hostility in the room allows parties to have a clear mind in order to make the best decisions for their family.  In law school, one of my studying tools was using acronyms to help me remember rules of law.  Using the acronym DISARM can help mediators disarm the hostility in the room, in turn facilitating open communication in a  productive and peaceful manner. 

The “D” stands for Defuse the Situation.  In order to defuse the situation, we need to address the conflict as soon as you see it.  Don’t wait and think it will smooth over.  Address it head on so the parties can address it and focus on the more important things.  Asking parties what they don’t like about the situation and what they would like to see done differently can be an effective way to communicate because it engages the problem-solving side of the person’s brain, which can break their pattern of attacking the other side or otherwise create drama. 

The “I” stands for Ignore the Words. I know, it seems to be counterintuitive to what we know.  As mediators, we are required to be active listeners.  I am not suggesting that we shouldn’t be, but ignoring the words to identify the emotion that the party is showing and expressing that emotion can be an effective way to de-escalate a hostile angry person quickly and effectively.[1]  It’s a different way of listening and responding that turns out to be a powerful tool. 

 The “S” stands for Say the Emotion.  Once you have listened for the emotion, state the emotion in a short declarative “You” statement. 

The “A” stands for Acceptance.  Helping parties picture the new reality of their new normal can help people accept that they may have to downgrade in size of home or won’t see the children on an important holiday every year.  As a litigator, I would always compare a divorce as a death to my clients when they became emotional.  So much is lost in a divorce, not just money, but time with the children, loss of relationships with relatives from your spouse, etc. 

The “R” stands for Reframing.  Reframing can be used for many things when managing conflict. For example: defusing inflammatory language, refocusing attention, acknowledging strong emotions in a productive manner, and translating communication so that it is more likely to be heard and acknowledged by other parties.

 The “M” stands for Manage.   Managing the expectations of the parties can help the parties keep an open mind on different alternatives and new ideas to help resolve their issues.    Caucuses is a great place to do so.  Caucuses create a safe environment for a “reality test” of the positions of each party.  In other words, the caucus is a good time for a mediator to help each client identify the strengths and weaknesses of their case. Exploring these concerns in the privacy of the caucus can encourage a party to modify expectations and demands, a vital step if there is to be a voluntary agreement.

Damary V. Stokes has been a member of the Florida bar for over 15 years and was previously appointed as a General Magistrate for the 15^th Judicial Circuit.  She is currently a fulltime mediator with Matrix Mediation and an adjunct professor at her alma matter law school, Nova Southeastern Shepard Broad Law Center.  Damary can be reached at 561-247-0489 or via email at [email protected] or www.matrixmediation.com.

[1] De-escalate: How to Calman Angry Person in 90 seconds or less, written by Douglas E. Noll

Published: November 2023
Written by: William J. Cea

I previously wrote about why I was sticking with Zoom for mediation despite the easing of Covid 19 restrictions. Having now mediated via Zoom for over three years, I am sticking with it. As everyone knows, mediation is intended to be an informal process, founded upon the principle of self-determination. While a mediator lacks authority to make any decisions or impose a resolution on the parties, my number one ask of the parties is for patience. Mediation is a process that requires patience, which is fostered by Zoom.    

During the initial orientation session, I routinely give my thoughts on the importance of patience. Oftentimes, people are participating in mediation for the first time. They are anxious, stressed and concerned with decisions that may need to be made. Participants typically expect to “hit the ground running” and ask how long the mediation will last. These pressures and feelings are only compounded if participants have spent significant time and expense planning, traveling, and everything else that goes into an in-person session.  

I understand that some believe that in person mediation is favorable. In my experience, however, not only is there no drop off by using Zoom, but the tension and frustration level that may be encountered is only heightened by in person mediation. This is particularly true when one or more parties are not fully prepared for mediation and/or there are impediments to reaching a final resolution. In such situations, it is far easier and less costly to switch gears and discuss an adjournment or process as part of a Zoom session than after everyone has traveled and gathered.  

For example, if it turns out that there is more discovery or investigation that is needed before the parties can meaningfully resolve certain issues or quantify damages, wouldn’t it be better to find that out in a Zoom session than travel to find that out? This is not an infrequent occurrence in construction defects litigation. For example, parties may have identified issues with constructed improvements, but are still investigating the extent and expense of any necessary repairs. 

Consider the time, expense, and aggravation impact on the process if parties believe traveling to an in-person mediation was a waste of time. Contrast to an initial Zoom session where issues are discussed and impediments to reaching a final resolution are hashed out. The frustration is far less when the overall time and expense of mediation is limited.  

Additionally, in multi-party construction litigation there are routinely parties that may not need to be present or participate all day. For example, a subcontractor or design professional that is only tangentially involved in the case. In these cases, it is far easier to provide the party with the opportunity to tend to other business and have them patch back into Zoom when needed.  

Similarly, participants may have scheduling restrictions that could prematurely end the mediation. What if instead, a participant could leave the Zoom to pick up a child and patch back in via Zoom. Other participants could continue to work without feeling that someone has left the in-person session creating unnecessary frustration or an impasse. 

There is also the time and expense of experts to consider. Experts can attend remotely, make a presentation, for example, and then participate on an as needed basis. If an expert is required to travel and attend mediation in person, there will be significant expense and added pressure. Hence, another reason that Zoom assists the parties. 

Finally, I have not seen a drop off on the ability to memorialize settlement agreements. To the contrary, when attorneys participate from their own workspace, they more easily generate and circulate settlement agreements. It is also easy to have counsel join the mediator in a virtual breakout room to discuss the settlement agreement and revisions or modifications that may be needed. Whether simply scanning signatures or use of virtual signing technology, drafting and execution of a settlement agreement is no more difficult using Zoom. In fact, there may not be anything more frustrating to parties that have had a long day at an in-person mediation to learn that the attorneys still need to put pen to paper at or after dinner time. Instead, if mediating via Zoom, the attorneys can and should be thinking in terms of circulating a draft settlement agreement via a privileged email as part of the mediation process.  

Thus, if mediation is supposed to be informal, flexible and conditioned on self-determination, doesn’t it make sense to provide the flexibility that Zoom provides? The mediator and the parties are also mutually benefitted if the mediator focuses on the mediation and not sitting in traffic and taking the time and energy away from preparation and focus on the day. Accordingly, this is why I am “still” sticking with Zoom for mediation. 

William J. Cea, Esq. is the current Co-Chair of the Palm Beach County Bar Association’s ADR Committee. He is also a Florida Board Certified Construction Attorney and Supreme Court Certified Circuit Civil Mediator. Having practiced law for over 30 years and mediating matters 2011, Mr. Cea now works as a mediator on a full-time basis and can be reached at (954) 494-3239 or [email protected].  

For additional ADR tips and resources, please go to the ADR Committee page of the updated Palm Beach County Bar Association website at: www.palmbeachbar.org.