Modest Goals/Martin Rosenfeld,JD

Richard Haass recently wrote an article about Desert Storm and what it taught us. He stated that that war, unlike subsequent wars in the new century, taught us the importance of having modest goals. In desert storm the invasion of Iraq was aimed at stopping that nation’s aggression. We had the good sense to limit our reach once that was accomplished. We did not need to expand our goals by e.g. removing Saddam Hussein from office. Knowing was is attainable and what is not is an important prerequisite to success in an undertaking.

It strikes me that what is true in warfare is also true in negotiation. You can’t go into a situation expecting to get it all. You need to be realistic therefore in what you hope to accomplish.

In a divorce, people often want to attain everything that seems within their reach, or in the alternative, to deny their opposing number from attaining very much of anything. That goal is not a realistic one. Mediation teaches the importance of Win-Win. The strategy is not to win so the other party can lose. It is to allow both parties to leave the process feeling they have won something that is important to them. How this is done is important. That it be done, however, is crucial for a lasting agreement and for the ultimate success of the negotiation. Litigation cannot accomplish this most modest goal. Mediate don’t litigate.


Is Divorce For Everyone?/Martin Rosenfeld, JD

The thrust of this blog is that divorce can be civil and dignified. However, even civil and dignified divorce can be an event that s scarring and traumatic. Adults can deal with the negative impact of divorce via therapy, support groups, new opportunities for growth, etc. Not all are equally capable of succeeding in all these areas. Then there are the children. A recent article on the need to re-think divorce can be found at The article by Tracey Sloan is another perspective that we do not often hear. Divorce resolves some problems and creates others at the same time. Ms. Sloan discusses making better and wiser choices. She feels that sometimes divorce may not be an example of such a choice. The thoughts expressed are always worth considering if divorce is in your thoughts and consideration. For those contemplating divorce, the article offers a perspective that merits time and consideration.

Women and Post-Divorce Stories/Martin Rosenfeld, JD

Brittany Wong wrote a recent piece on HuffPo entitled “8 Famous Women Who Reinvented Themselves After Divorce”. In facing the challenges posed by divorce, famous women tried new ventures and worked to create new opportunities for themselves. One of the women, Elizabeth Gilbert, a writer, said the following: “I am choosing happiness over suffering.” We all make choices about how we will adapt to adversity. Suffering is a choice and so is happiness. The decision as to which emotion to embrace is left to the individual. We need to choose wisely.

Another writer, the late Nora Ephron, has this to say about her very public divorce: “The point is that for a long time, the fact that I was divorced was the most important thing about me. And now it’s not.” One must never allow a setback to define their life. Lives are most to be underscored by successes and activity.”

Other women featured in this article include Martha Stewart and Tina Turner. It is a great gift to see opportunity even in the face of adversity.

Mediation Works/Martin Rosenfeld, JD

Many of us have seen the history of the world according to Mel Brooks. In one scene, Moses announces that he has brought the 15 Commandments. As soon as one tablet falls and shatters, Moses updates that announcement to the fact that he has 10 Commandments. Most lists consist of 10 bullet points in favor or against X,Y or Z. After mediation practice for a number of years, I would like to offer my shortened list; i.e. 5 reasons in favor of mediation when there is a controversy. I believe these 5 points “sell” mediation:

1. Mediation is LESS costly.

2. Mediation is LESS traumatic.

3. Mediation is LESS likely to lead to broken agreements and commitments.

4. Mediation is LESS time-consuming

5. Mediation is MORE civil and dignified.

Mediation makes sense in all situations. Mediate don’t litigate.

Signed Mediation Agreements/Martin Rosenfeld, JD

There are suggestions that mediation agreements contain a clause that such agreement is not valid until it is signed. This is an accurate depiction of the law. Any agreement meant to be in written form, cannot be binding without such a signature. What to do in the interim?

There a few possibilities:

1. The parties can sign a handwritten agreement drafted by the mediator and not leave until this is accomplished at the last session.

2. The parties can make a token gesture such as a handshake and indicate that they have accepted the terms of the mediation. Of course, what those terms are may well be the subject of controversy. This gesture may be a hollow one.

3. The parties may simply be advised that his is the nature of agreements. Until a contract is signed, parties can in fact still withdraw their acceptance of the terms. If this is made clear in advance, the parties need to appreciate the importance of good faith bargaining and the value of the spoken word. Perhaps this very issue needs to be stressed at every meeting. Where there is no good faith there is not only a possible dead end at the mediation’s ending. There is no true attempt for Win-Win. Why undertake to do something if you are not serious about keeping your word and building on good-faith? Even opposing parties can buy into the logic of such a commitment.

Hiroshima and Mediation/Martin Rosenfeld, JD

A book entitled “Democracy in the Dark” has been authored by Attorney Frederic Schwarz, Jr. Mr. Schwarz gives an example of how secrecy can often work against the interests of society. The dropping of the Atomic Bomb over Japan was carried out by the US, under President Truman, after a period of great secrecy. many thousands of civilians were killed in the attacks over Hiroshima and Nagasaki. Had the bombing plan been made more public it is arguable that alternative planning putting fewer innocents at risk could have been determined. The idea of the secrecy was intended to save lives. However, it is possible that more lives could have been saved had there been a candid exchange of ideas and a review of viable alternatives. More information is often better than less information.

How can parties engaged in a controversy pursue the goals of Win-Win. Common sense dictates that more information and candid talk will be more advisable than tight-lipped exchanges. Mediation seeks to put information in the public domain. The assumption that underlies mediation is that parties reach better decisions when more, not less, information is discussed and analyzed. Looking at the atomic bomb and its antecedents, one can see how transparency is in the interests of all. Mediates facilitates discussion. Discussion leads to enlightened results. Mediate don’t litigate.

Positive Mediation Behavior/Martin Rosenfeld, JD

Attorney Dick Price wrote a piece recently for entitled “Considering Reconciling?” Attorney Price suggests behaviors that will go a long way in helping parties who might wish to reconcile in the future. The conciliatory behaviors are:

1. Don’t burn bridges.

2. Listen to the other party’s positions and needs.

3. Forgive

4. Admit mistakes.

5. Get professional help.

It strikes me that these behaviors are appropriate for all mediations, even where reconciliation is not a possibility. Listening and forgiving are helpful whatever the circumstances. They help the party who is exhibiting such behaviors in any event. Admitting mistakes is a wise course of behavior. Professional intervention can be very helpful. Whether or not you have a long-range goal of reconciliation, being humble, honest and considerate will accomplish much. Proper behavior is always in vogue. You will only find this out if you make the effort to practice such civil behavior. In this case, the psych you save may truly be your own.

When to Divorce/Martin Rosenfeld, JD

Melissa Levis wrote a post at HuffPo about divorce and its timing. Her piece is entitled “How to Know When Your Marriage is Really Over”. In point of fact, we can only make such a decision on the basis of emotion and intuition. There is no hard data that will help us form our opinion concerning the timing of a divorce, if such action is called for. The advice is stated in the following manner:

“To all of you on the fence, take your time. Have faith that you will know when you are ready to know.”

The key point of the advice is that a divorce to divorce, or not to divorce, must always come from within. You need to ascertain whether you have rushed into such a decision. The decision will change the lives of many. The popular advice is that anything worth doing is worth doing well. Perhaps in the area of divorce the better advice is that any decision to divorce is worth implementing when you have invested the time and effort to assure yourself that the decision is a wise one. That will occur “when you know that you are ready to know.” Until that time, learn to take your time. Too much is at stake

Minnesota Takes a New Look at Divorce/Martin Rosenfeld, JD

A recent post at, by Dan Simon, a noted mediator, contains the following discussion re Minnesota’s proposed law to transform how divorce is handled:

“Doherty (a Minnesota family therapist   MR) says that, no matter how well-intentioned the lawyers, the assumption that judicial supervision is needed greatly increases the risk of destructive conflict arising. Doherty believes that, very often, couples who get divorced without the help of lawyers do better than they would with lawyers. Doherty’s plan takes divorce entirely outside the courts.”

What I find so interesting about the Simon post is the concept that taking attorneys out of the divorce paradigm may effectively make divorce a less conflictual process. Are attorneys part of the problem, part of the solution, or neutral third parties? Certainly the question that is raised is an interesting one. One personal comment will be added. When is the last time that you read an account which raised the question as to whether the presence of mediators brings more conflict into the divorce mix. Now that is something to ponder.

Mediate don’t litigate.

Mediation Before the Marriage/Martin Rosenfeld, JD

In an article in HuffPo last October, Attorney/Mediator Laurie Israel wrote about a new passion she has discovered for mediating pre-nuptial agreements. In the traditional setting, one party gets the agreement drawn up and the agreement is then reviewed by opposing party’s counsel. In many cases, this agreement leaves little, if anything, to the party who is asked to sign the document. In such a scenario, feelings can be harmed. At times, the damage can become irreparable. The sense of being “shut out” from consideration is quite real.

Mediation, on the other hand, can help resolve differences and allow for a more level playing field. In such a setting, the couple can calmly discuss how to balance legitimate concerns. Such a discussion, aimed at strengthening the marriage, rises to the positive effect of marital mediation.

It has been shown that generosity in a marriage is a vital ingredient in attaining happiness. (Pretty self-evident, is it not?). The mediated pre-nuptial process can now center about generosity, candid exchange and clear communication and dialogue. The process will also serve the couple well in their married life. It prepares them to work constructively in resolving difficult issues.

Pre-nuptials handled poorly can be divisive. With the right process, it can be a recipe for future happiness.