The Poetry of Mediation Practice/Martin Rosenfeld

Attorney/Mediator Stephen Erickson wrote a beautiful tribute to mediation practice and process, on mediate.com. His article, “An Alternative to Family Colisseum of Family Court” can be found at http://www.mediate.com/articles/ericksonS1.cfm. Attorney Erickson asks whether divorce needs to pit two combatants against one another with the only winners those who claim the title of attorney. Whether the issue is parenting, fairness, dignity or simple civility, the author of this wonderful piece makes us wonder if there is not a proper recourse to divorce litigation and divorce battles. Fortunately, there is; it is a process called mediation. If you want to see why mediation is so eminently logical and necessary, give this article a read. It represents the elegance of the mediation process. You will not be disappointed.

What is a Surgical Divorce?/Martin Rosenfeld

One of the attorney/mediator names seen frequentlt on the blogosphere is that of Laurie Israel, Esq. Ms. Israel contributed a post to the HuffPo website in which she describes a model for divorce known as “surgical divorce”. (See http://www.huffingtonpost.com/laurie-israel/what-is-a-surgical-divorc_b_1472698.html). Such a divorce is most likely to occur when the parties wish to enter into an expedited divorce process. A surgical divorce has minimal disputes, is rather straight-forward, and is meant to be peaceful and low-cost. Often the parties have discussed many, if not all, aspects of their divorce agreement. They simply need additional guidance and and legal input. Attorney Israel explains that such divorces often has only one party represented by an attorney while the other party is pro se (without an attorney). As she sums it up: “It can be the last caring act of an ended marriage.”

The article by Attorney Israel is informative, but I have seen this process unfold in mediated divorces as well. Once parties decide they will spare their children ,and themselves, the agony of a divorce battle. options emerge, discussions are geared to Win-Win, and the divorce process becomes civil and result-oriented. Mediations become very productive when the parties recognize that a settlement is within reach. Whatever you call your divorce process, you must remember that the desire to communicate and find solutions, makes the process less offensive and more protective of emotional needs and feelings. Call it surgical, mediated or collaborative; the real question is whether you wish your divorce to be civil. What is the downside of civil divorce? I can’t think of an answer to that question. If civility is not your thing, forget the prior discussion. Otherwise remember one maxim; Mediate don’t litigate.

Honesty in Negotiations/Martin Rosenfeld

Richard Haass, a career diplomat and public servant, recently appeared on a talk show and discussed the upcoming election. Mr. Haass opined that the winning formula for a successful candidate would need to be honesty. In effect the candidate will need to say: “We are facing problems in America, the remedy will not come quickly, but we can see this through.” Years ago, when President Eisenhower ran for office, he told a story with the similar theme of being straightforward. The anecdote was about the spiritually-minded small town farmer who wished to see his cow. When asked how much milk this cow normally produced, the farmer realized he did not know how to answer the question. Facts evaded him. The farmer simply replied: “This cow is an honest cow. Whatever milk she has, she will give you”.

People appreciate honesty and being given straight talk. If you have a legal dispute with another (family, commercial, etc.) why not settle for honest talk. “This is what I need, this is what I can give.” Chances are that the other party will appreciate this and will act in kind. Honest discussion helps both parties, reduces rancor, and ultimately reduces the cost of your legal representation. Honesty is a possible by-product of mediated discussion. It is virtually impossible to attain through litigation and confrontation. As always, the best advice is this; mediate don’t litigate.

Keep Your Eyes on the Prize/Martin Rosenfeld

Michael Hirsch of the National Journal wrote a sobering article in which he agreed with an assessment made by Rep. Barney Frank. Mr. Frank rues the fact that he could not persuade President Obama to put off the Health Care fight for a period after the economic crisis had been addressed. In choosing to introduce Health Care reform early in his presidency, President Obama took his eye off the need to address the economic and jobs as the first matter of national business. In fact, each time an Obama advisor discusses how the economic crisis they inherited was worse than they thought, they are reinforcing this question. If the crisis was so bad, why was so little time and effort dedicated to finding a solution? Mr. Hirsch attributes this dropping of the ball to a case of misplaced priorities. If you can’t do everything at one time, you need to prioritize needs and the resources you can call upon to meet the challenges.In divorce mediation, this sense of prioritization is a critical factor. You may have many needs and demands you wish to make. But if you won’t get everything you want (who does?), you need to decide what is essential and what is discretionary. Prioritize your needs, be prepared to be flexible on that which is not essential, and you have the makings of a successful negotiation. You don’t want to drop the ball by making everything sound as if it is of critical importance. If you wish to negotiate with effectiveness, you need to come to the table prepared and armed with your listing of priorities. Mediate don’t litigate.

Say What You Mean/Martin Rosenfeld

There was a discussion among the “empty suits” concerning the upcoming election. One expert opined that President Obama might be in trouble as he is no longer seen as the “fix-it-all” man. (They actually used the word “Messiah” but I believe this terms offends some religious sensibilities.) In response, one guest said that he doubted this theory as Americans do not believe that one person can truly “fix-it-all”. A point that is fair enough. What was the response? “Well they have a right to believe that this is a reasonable expectation if one chooses to run on such a premise.”

In human relationships we have to be careful about what we say. People have an odd way of believing statements that perhaps we never really believed ourselves. In loving relationships, we all need to be aware that we say truly does make a difference. If you don’t really believe what you are saying, don’t say it.

There is a charming story about Mohatma Gandhi. A true believer asked if Gandhi would convince his young child that eating candy was a bad idea. Gandhi asked for two weeks time. In two weeks, Gandhi met the young boy and told him that candy was bad for the teeth and not healthy. The surprised father asked :”Why did that talk take 2 weeks to prepare?”. Gandhi answered: “The talk was ready to go 2 weeks ago. I needed the 2 weeks to get myself to stop eating candy.” Mean what you say and say what you mean.

A Mediation That Wasn’t/Martin Rosenfeld

(This post is a complement to my prior post found at http://civildivorcecivilget.wordpress.com/2012/03/24/agunah-facebook-and-mediationrabbi-martin-rosenfeld/)

The following discussion was written as an Op-Ed piece for the Washington Jewish Week. It was not published, as the newspaper chose, instead, to write about a recent rally held at Yeshiva University in support of the woman who has yet to receive a Jewish divorce (Get) from her husband. Some of my comments were excepted therein.

The woman in the controversy, Ms. Epstein, has been referred to as an Agunah which is the Hebrew term for a woman who seeks a Jewish divorce and has yet to receive it. The condensed version of the Op-Ed piece I had submitted will now follow.

“I am a New Jersey divorce mediator who has read much about the local Agunah controversy (Epstein/Friedman.) I recently offered to mediate this matter, pro bono, if both parties were interested. Only one party responded in the affirmative. The party, Mr. Aharon Friedman, agreed to enter into mediation without pre-condition. Obviously, the mediation could not take place without two willing parties and my offer could not bear fruit. In the interim. I have had a chance to speak to parties on both sides of the controversy and I would like to share several observations.

There are no winners in divorce controversies. This matter is tragic for Ms. Tamar Epstein, for Mr. Aharon Friedman, and for their daughter. It is inevitable that people will want to do something to break the deadlock. Hence we read of protest rallies, Facebook campaigns, social ostracism, etc. As a general rule, I believe it can be said that there is virtually no controversy where one party is fully right and one is fully wrong. The logical focus then should be to determine what action might lead to positive results and reinforce it. The actions that can lead to negative results need to be rejected.

What actions need to be avoided? Statements based on hyperbole is a good place to begin. The statement made by a local rabbi that Mr. Friedman is withholding the Get in order to be spiteful is a non-starter. Nobody I spoke with agrees with this statement. When a person makes such a statement, s/he is stating: “I am not a serious discussant. Please ignore what I say.” So I will.

There is an option to go to those in power. Hence, a Facebook campaign was aimed at pressuring Representative Camp, “employer” of Mr. Friedman, to intervene. Jewish history is replete with many instances of Jewish controversies being submitted to non-Jewish officials. They have all been disastrous failures. Too, Representative Camp has been a strong supporter of Jewish causes. The language of the Facebook petition lacks a veneer of finesse and dignity. It is a campaign that reflects on all of us. Beware when someone purports to speak for all of the Jewish people. I would not write to a Congressional friend in such tones. Furthermore, I believe such campaigns can be counter-productive.

Articles have described tactics such as trying to prevent the Friedman grandparents from picking up their granddaughter to “ferry” over to Mr. Friedman. Protests have been organized outside the home of Friedman relatives in New York. Charges of “abuser” have been levied against Mr. Friedman. I doubt these tactics can work in most cases. However, we are the people who believe that “justice, justice shall you pursue”. One interpretation is that justice must be pursued with justice. I do not believe such behaviors are justifiable if we apply a test of moral probity.

Complicating this matter is the fact that a rabbinical tribunal found Mr. Friedman to be in “contempt”. This finding has no statement of facts so it is difficult to fully interpret. However, due to my word limitation, I will refer the interested reader to my article at: http://matzav.com/agunah-facebook-and-a-proposal.

What actions might we wish to embrace? I understand why some people wish to rally against a party they feel is acting improperly. I would suggest that the local rabbinate define when such protests are permissible, where they are permissible, and how often they are permissible. Without some guidance, I fear that, as tempers rise, the possibility of physical confrontation increases. There needs to be an ethic of protest. I likewise believe that the local rabbinate needs to approve all media statements and all programs that discuss this matter.

Any controversy can only be aided by mediation. Clearly, I will not be mediating this matter, but efforts to bring the parties together for a face-to-face discussion need to be considered anew. Mediation does work.

My last suggestion is perhaps most controversial. The contempt order stated that all who have the power to do so must convince Mr. Friedman to give Ms. Epstein a Get. You will not be able to get this influence by accosting Mr. Friedman in the streets or in the synagogue. Try a kind word, a thoughtful gesture, and then wait for your moment to share your feelings. President Abraham Lincoln was once criticized for suggesting that he would welcome the Southern States back to the Union. A woman challenged him:“Didn’t you tell us you would destroy the enemies of the United States?” The response of the President was: “My dear lady, I know of no better way to destroy my enemy than to convert them to a friend.” It is my sincere hope that for the sake of all parties, this matter will soon be resolved.”

Since my original post on a blog of mine, a few comments have been sent to me. In such controversies, everyone tends to see the matter solely from their own perspective. In light of this, One reader stated that he felt the husband was correct in his actions but he needed to resolve this matter speedily for his own sake. Expediency trumped right and wrong. One reader wanted to know how mediation could work if the husband was an abuser. I wrote back and asked how this abuser charge had been determined. This charge, in my thinking, is the most cynical ruse concocted in this whole matter. A person might be wrong, in an objective sense, in pursuing a certain type of relief. Does that make them an abuser? And who makes the decision concerning who will be so branded? Does a resort to tagging people with charged titles truly shed light on the issues of right and wrong? Yet another reader wanted to know why I felt a get should be given within 45 days if I had not stated definitively that I believed one version of the story over another. I fail to see this as a contradiction.

I still have some reason to be hopeful that a breakthrough will occur. Unfortunately, I also believe that the character assassination, public rallies, public forums, etc. have merely hardened the resolve on both sides. Ultimately, tagging someone an abuser will likely prolong the dispute rather than help in resolving it. I would not, personally, give in to such improper behavior. It would harden my resolve to seek justice. Libel laws protect us from such hurtful charges.

Which brings us back to my proposal. I do indeed feel that the giving of a Get would be appropriate. I also feel that any claims seeking redress need to be heard and should be properly brought. This situation has sapped the strength of our community. I hope women and men of good will will eventually get together after this matter concludes and evaluate what went right and what went wrong. I have presented some of my own feelings. A Get is given when a marriage is dissolved. Concurrently, people who truly feel they have been wronged deserve a chance to be heard. This is the Jewish way; this is the American way. Branding such people in international communication as abusers, rallying against innocent parties, trying to interfere with legal process such as transporting children to visitations, etc. is neither Jewish nor American. I hope we never live to see such behavior perpetrated again without a unified outcry from all, men and women, that a line of decency has been crossed. We all desire justice. May we pursue justice with justice.

One last word. During the Reagan years, a Cabinet member, Raymond Donovan, had been indicted with charges of racketeering, taking bribes, etc. After years of legal wrangling, and massive legal bills, a federal judge happily told Mr. Donovan that the investigation had proven nothing. Mr. Donovan was a free man. When asked if he wished to comment, Mr. Donovan said: “Judge, now which office do I go to so I can get my reputation back?” I have already received a message from one communal leader who thanked me for bringing certain facts to his attention relative to this case. He had been unaware of certain information.

One day many of us will conclude that this matter, like life, was not one of “black and white” hues. It was a very complex matter. It was of the “gray” coloration. At such a time, you may wish to go to the organizational structures that brought you to rallies, protests, and forums and ask them where Mr. Friedman may go to get his reputation back. He is neither saint nor sinner. Mr. Friedman is all of us in this regard. You may ponder at this future date if you checked out your facts before you branded this father of a young daughter an abuser. Did you speak before you verified the facts? If you feel you did, you may wish to demand from our leaders that they assure that trial by press and by the heat of emotion never again be permitted. We are all paying a big price.

Jeremy Lin and Communication/Martin Rosenfeld

A staff writer for ESPN wrote an article about the new NBA phenom, Jeremy Lin. He entitled his article “Chink in the Armor”. Most readers interpreted this headline as an ethnic slur on Mr. Lin, and the writer was fired. When he realized what he had brought about, the writer of the offending article apologized to Mr. Lin. The latter accepted his apology. However, the CNN decision currently stands relative to the firing of the journalist.

I believe, as did Mr. Lin, apparently, that no malicious intent existed in the mind of this journalist when he wrote his story. He used similar language in other stories and simply forgot to think of the consequences of words. Words however do have serious ramifications even when no intent to harm others ever existed. We live in a fast-paced time of quick e-mails, brief texts, short voice mails, etc. It is sad to see how a career can be waylaid by sloppy speech, half-baked comments, etc. When one takes this to the next level and thinks of how speech intra-family can have unintended consequences, we see how careful one must be with how they communicate.

I had a legal writing instructor in law school who often said that every craftsman must have clean tools. The tools of the lawyer are words. He reminded us to ensure these words were sharply crafted and well-paced. This is a universal lesson. One word can ruin a career or a relationship. Use speech with precision and forethought. A failure to do so will lead to nothing that is good or constructive.