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Mediator's Cafe

Blog Entry #8 Drastic Decisions and Reality Testing

September 12, 2021

I did a mediation recently that had some disturbing proposals on the part of one of the parties. They came to mediation to create a parenting plan for their daughter. Their daughter lived with her father full-time. The mother hadn’t seen her daughter in a year. The dad believed this was because she didn’t care about her child and wasn’t interested in being a mother. The mom, of course, had a different story. She works in a dentist office, and when the pandemic happened, she was concerned that her exposure to the virus at work would be spread to her daughter and ex-husband, so she stopped seeing them in order to protect them. She ended up coming down with covid herself due to her work exposure. The father didn’t believe this was the reason why she hadn’t seen her daughter, even after several hours of discussion. He was adamant that the mom had been absent by choice rather than necessity.


These parties needed to create a parenting plan. In Washington, if you have children, this is one of several documents you must complete in order to finalize a divorce. The dad was appalled at the absence of the mom from their daughter’s life. He thinks it’s really important for his daughter to see her mother regularly, so he presented several proposals to change their custody situation to include both parents. He was willing to do whatever it takes to encourage his ex to reintegrate into their daughter’s life. Sounds good, right? He threw out several ideas – to have her see her daughter on alternate weekends and several other ideas. He then tossed out this one – to completely reverse their custody situation so that their daughter would live primarily with her mom and would see her father on alternate weekends. The dad said he’d even be willing to fully reverse their custody arrangement in this way if it would make the mom be a parent to their child. He thought anything would be better than his daughter not having a mother and said he’d be willing to make this extreme change if it would help. This was a new idea for him, one that he thought of right then while brainstorming during the mediation.


Once he voiced this idea, he latched onto it as the plan he wanted to stick with. He stopped discussing other ideas and focused on this one. The mom wanted reunification with her daughter, so she went with it. The couple started fleshing out the details of how this custody arrangement that was so radically different from their current one would work.


Several times during this discussion, the dad said that this would make the mom be a mother to her daughter. This was disturbing to me. It wasn’t that the mom who would then have the majority custody. In the many parenting plan mediations I’ve done, I’ve seen parents create all kinds of different variations on who sees the child when and for how long. There is no plan that is right for everyone. Each couple’s set of circumstances is different. What was bothering me was that he was trying to use the parenting plan to force the mother into changing her behavior. This didn’t seem to me like a good motive to make this change.


As mediators, we are neutral. We are not advocates for any party. However, when writing a parenting plan, we try to encourage the parents to first and foremost consider what’s best for the child. It shouldn’t be about what one or the other parent wants or what works best for them. The child is not at the table and has no one representing their interests. Sometimes a court will appoint a guardian ad litem to represent the best interest of the child, but that is not often done before mediation. Given a mediator’s neutrality, it is not our role to assert an opinion or make suggestions. Even if I have an opinion about what’s in the best interest of the child, it wouldn’t be appropriate for me to push it or even to voice it. A mediator can, however, ask questions and do reality testing.


In this case, I had some questions for both parents. For the dad, I wanted to ask if he’d thought about how this custody change would affect him and how he thought his daughter would handle the change. For the mom, I wanted to ask if she’d thought about how this would change her day-to-day life. This is what we call reality testing – asking the parties to consider how something would work in real life and what impact it would have. For example, if a divorcing couple who only have one car decide they’ll continue to share the car after the divorce, how will it work to share the car? Who will have it when? What if one needs the car when it’s the other’s time to have it? What will they do? Another example would be where one party owes a debt to another and agrees to make payments of $500 a month, yet is unemployed. How is that party going to come up with the money to make the payments? Are $500 monthly payments realistic for them? What if they can’t make the payments? “What ifs” are often part of reality testing.


When reality testing, you have to be very careful about how you phrase your questions. The attempt with your questions should be to solicit elaboration and to encourage the parties to think things through, not to lead them to do what you the mediator think is best. As neutrals, our opinions have no place at the mediation table. We should be careful to ask questions that stimulate thought rather than lead them to a certain conclusion or manipulate them into making a different choice than they seem to be making. This is the art of reality testing – asking questions that help the parties come to their own conclusions so that they can make a fully informed, voluntary decision. That’s what I did in this mediation.


In this case, reality testing questions for the father went something like this … How will you feel every day at home when your daughter is at her mom’s house and you’re alone? He would be going from seeing his daughter all day every day for a year to seeing her only every other weekend. And as far as how it would impact his child … How will your daughter handle the change from living with you full-time to suddenly being with someone every day that she hasn’t seen for a year? That would be a lot of change for a young child – a different home with different rules and a different parent that she functionally had no relationship with prior to the change. And for reality testing with the mother, it went something like this … How will your life change going from not seeing your daughter at all to having her live with you full-time? Do you have a bedroom she can use, clothes and supplies, etc.? Is your work schedule flexible enough to handle the time demands that being a full-time parent will necessitate? Is exposure to covid at your work still a concern? How will you keep your daughter safe?


I asked these questions to the parents in private meetings so as to give them space to express what came up without the other parent seeing and to allow them to work out the implications of this idea privately. Since this proposal had only been brainstormed that day, neither parent had thought through the implications. The father in particular had a very strong emotional reaction in the private meeting. In thinking through the implications, he decided that this complete change in custody wasn’t what he wanted to do. The impacts would be too huge, especially for his daughter, and his daughter’s best interest is what the dad was after. The mother didn’t have as strong a reaction as he did, but she saw that a change like this isn’t something you should do lightly. You need to think it through.


When we got back to the main room after the private meetings, the parties rolled up their virtual sleeves and went to work on their parenting plan. Neither of them continued to discuss the full change of custody that they’d been talking about earlier. They worked instead on a plan that they thought was more realistic and would truly be the best thing for their daughter, a plan that reintegrated the mother back into her daughter’s life and created a consistent schedule for her to see her little girl while not removing the father from her life.


If the parties had decided to stick to the original proposal (complete change of custody), that would have been the plan that I wrote up because any agreement the parties come to in mediation is their decision to make. If they wanted the drastic change, that is what their agreement would say. But with the help of some carefully composed questions, they would have made that decision having thought through how this would affect all involved. That consideration would have happened as a result of reality testing.


Please note: details of this mediation have been changed to protect the confidentiality of the parties. 


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Mediator's Cafe

Blog Entry #7 The Value of Things

November 28, 2020

For a party in a mediation, a particular item can carry a lot of meaning that far outweighs its monetary value. Sometimes parties will work through several issues on their agenda easily, giving and taking to come to agreement, only to get stuck on something that from the outside seems minor, not very valuable and certainly not worth blowing up all the agreements they’ve already reached. For instance, they’ll come to agreement on who gets the house and how to split their retirement funds worth tens or hundreds of thousands of dollars but then fight bitterly over the recliner, each digging their feet in until they’re ready to give up and go home with no agreement. This stuckness is a clue to mediators that the item, the recliner, has some other value or symbolic meaning that gets to the core of the conflict between the two people. Instead of continuing to discuss who gets the recliner or who compensates who for the monetary value of it, it can be much more fruitful to discuss the meaning of the item. Fixed positions tell a mediator that there’s an important interest underlying what is being discussed. Helping each party understand those interests is why mediation is so useful and helpful.


I did a mediation recently in which an item of relatively low monetary value was the item that symbolized their whole conflict, like the recliner mentioned above. This mediation was a property distribution for a couple who had broken up. They were living in separate homes but still needed to deal with their finances, vehicles, some furniture, and various other items. They discussed each item in turn. They argued bitterly about what should happen to them. He thought he should get the better sofa set since he had chosen and bought them. She said she had just taken one sofa since there were two without any thought about which one was worth more. He wanted half of her bank account since she’d been the one making more money and all of both of their money was community property. She wanted him to keep his account and her to keep hers. He wanted her to pay him spousal maintenance until he could get on his feet. She wanted them to walk away clean without spousal maintenance or anything else continuing to tie them together.


Washington State is a community property state which means that everything earned by each party in a marriage belongs to both of them. Together they form a community. There are some exceptions to this, such as certain inheritance situations, but these exceptions are not relevant to this case so won’t be discussed here.


For some of the items they discussed, they came to agreement easily. He kept his car with its associated loan, and she kept hers with its loan. But they got hung up on the issue of their bank accounts. They had each operated out of a different account, each account in only one of their names. While they were together, one of them had paid the rent out of their account; the other had paid the bills out of theirs. Their finances had been partially together and partially separate. They had not completely merged them like some couples do. She had had the more full-time and better paying job. He had been going to school so wasn’t earning much.


The discussion about the couple’s bank accounts was not going anywhere, so we tabled that issue and decided to come back to it after tackling other topics.


In some mediations, parties talk about the history of their relationship. This can be helpful as it gives the mediators context for the feelings and positions of the parties. Sometimes, it isn’t helpful for parties to discuss this because it can send them down a rabbit hole of hurt feelings which can make it hard for them to be open enough to negotiate with the other person. As mediators, we have to be careful how we ask the parties to share their perspective with us. “Tell us your story” elicits quite a different response than “What do you hope to accomplish today?”


In this case, the parties did not tell us the history of their relationship. From hints and intimations, we gathered that the woman had been the one to break up with the man and that it had been somewhat of a surprise to him. She had been away for work for several months and had broken up with him upon her return. They didn’t tell us the details of this, such as whether there had been an affair or what their relationship had been like up until then. We were told enough to know that she had done the leaving and he had been hurt.


They discussed spousal maintenance. He wanted spousal maintenance so that he could transition from being a full-time student to getting a job and earning enough to support himself. She didn’t think she should have to support him. This was another issue they got stuck on, so we moved on, planning to come back to it later.


The next topic was about a necklace that he had that had been given to her by her mother. She wanted it back. He easily agreed to this. Next was about her wedding dress. He wanted to be reimbursed for the value of the dress, which he had given to her as a gift. This led to a discussion about whether gifts belong to the person they were given to or to the community. There are situations in which gifts are considered community property and situations in which they are considered separate property. An attorney would be qualified to tease this out if the parties desired.


At this point the man made a proposal: if she would reimburse him for the value of the wedding dress, he would drop all claim to anything else, including the bank accounts and spousal maintenance. The dress had a value of several hundred dollars compared to the thousands of dollars of the other items being discussed. Clearly, the wedding dress had more value to him than only its financial value. I think this proposal was his way of saying that he thinks their wedding and marriage meant more to him than it did to her.


In this mediation, the symbolism of the wedding dress to the man was the interest at the core of the conflict between them. The woman understood what he was saying with this. She readily accepted his proposal. For her, closure was more important than anything else. So she agreed to reimburse him for the value of her wedding dress, and he dropped any claim to half of their assets in the bank accounts, any claim for spousal maintenance, and agreed to all other outstanding issues. The rest of the items to be discussed fell into place quite easily, and they both went home happy with the outcome. This mediation was a good demonstration that sometimes a specific item can have a much greater symbolic value than its monetary value, and if the interests underlying that symbolic meaning are understood and honored by all, everything else will fall into place.


Please note: details of this mediation have been changed to protect the confidentiality of the parties. 


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Mediator's Cafe

Blog Entry #6 The Mediator's Cafe

May 15, 2020

The first Mediator's Cafe session was held today, an online meeting of the Washington Mediation Association for continuing education and networking for our mediator members. Our Senior Mediator, Felicia Staub, is on the Board of Directors of the WMA. This project is her brainchild. She created and made it happen as a new benefit to WMA members across the state so that they can connect and learn without having to travel. It went great - 29 people attended, far more than was expected for the first session. They came from all over the state, as well as Idaho and Mexico. Felicia has been working on this for over 6 months, and the timing of its launch was very fortuitous given the epidemic. We are very excited about this! 


Gabriel Muñoz, Senior Trainer and Facilitator, [email protected]

Felicia Staub, Senior Mediator and Trainer, [email protected]


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Mediation by Video Conferencing

Blog Entry #5 Mediation During the Pandemic

March 25, 2020

In this time of closed court services and social distancing, if you are involved in a family court or other court case, you may be frustrated with the delay in completing your case and resolving your issues. There’s still an option to try to finish and resolve your disputes, even during this pandemic. That is through mediation. 


Mediation can be done safely and remotely via video conferencing. At Empowered Communication, we are open and ready to mediate. During this lockdown, all of our intakes are done by phone, and all mediations are done by video conferencing. If you are a client, you needn't wait until after the pandemic has passed to resolve your dispute. If you are an attorney, you can decrease the backlog of your cases that’s being caused by this viral shutdown of the courts.


We charge $150 per hour for mediation and half the hourly rate for case intake, development, and planning. This would, as always, fulfill the mediation requirement of Yakima's local court rule. Mediation can be done if both parties agree to do so. Mediation scheduling can be expedited. They can be scheduled very quickly if needed. You can reach us by phone (509-654-6379), email ([email protected]), or through our contact page (www.empoweredcommunications.org/contact).


Thank you for your consideration. We wish you safety and good health.

Felicia Staub, Senior Mediator and Trainer

Gabriel Muñoz, Senior Trainer and Facilitator


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Blog Entry #4 The Effect of Power in Mediation

November 14, 2019


Please notes: Details from the mediations mentioned below have been changed here in order to protect the parties' confidentiality.


I did a mediation the other day in which the levels of power of each party played a very important role. One can have power from a number of different sources: positional power (such as a supervisor), financial power, emotional power, self-esteem differences, personal attributes (such as size or attractiveness), verbal ability, intellectual ability, charisma, cultural power, religious power, informational power, a greater number of people on one side, differences in class, gender, age, sexual orientation, traditions, habits, and reward or punishment, to name a few.

The mediation I did had two parties who had different types of power, each having way more of their type of power than the other party.


The man had the type of power that comes from his style of communicating. He was very loud, emphatic, and aggressive in the way he speaks. He was very smart and articulate. He had a big personality, the kind of personality that takes up a lot more room than just the space his body took sitting at the table. He did most of the talking and dominated the air waves. The woman was not a native English speaker, so despite also being very intelligent, the English language was challenging for her. And her style of communicating was very different from his. She could speak her mind, but she was soft spoken and nervous around the man.


The woman had the type of power that comes from reward and punishment. The man was so in love with her that he would do anything to stay in her life, including showering her with money, giving her a car, and making her the beneficiary of all of his assets in the event of his death. She wanted the relationship to be over and wanted independence. Any continuing interaction between them was only if she would allow it, if she rewarded him with it. This was a big hammer that she held over his head, and she knew it.


In mediation, we mediators don’t make decisions for the parties. Decisions are up to them to propose and agree to. It is our job to help the parties communicate and help them understand each other. It is our responsibility to make sure that decisions the parties come to are fully informed and voluntary. This means that the decisions they’re making are with complete, accurate information and that they are not coerced in any way. It is not our responsibility to make sure that agreements are equitable or balanced. The parties get to decide whether or not they want the agreements to be equitable and balanced. But we do need to make sure that they are making them with full and accurate information and understanding and that they are deciding freely of their own volition.


Part of how we do that is by balancing power. If one party is more powerful than the other and we don’t intervene to balance it, they may push their viewpoints onto the other and push the other into signing agreements they don’t really want. If this were to happen, the agreement would not be voluntary. This is especially important to pay attention to if domestic violence has been an issue in the parties’ relationship.


An agreement would not be fully informed if the parties have different intellectual capacities or different levels of expertise on a certain topic and one party doesn’t fully understand something. It can also happen if one party intentionally withholds information and pushes for agreement in the absence of discussing the withheld information. This is an example of bad faith. I saw this happen in a mediation in the past when one party worked toward agreement on some parts of the dispute but didn’t talk about other parts. Because of the high level of emotion party 1 was experiencing just from having this discussion after their very bad breakup, she didn’t think to bring up the other issues. After they came to and signed an agreement about divvying up their possessions, party 2 casually mentioned as they were about to leave that they would deal with outstanding financial issues (a retirement fund and spousal maintenance) in court. Party 1 very strongly wanted to avoid court and would not have made the other agreements if she’d known about this. We mediators had asked about other issues and tried to ensure that all issues were being discussed, but party 2 did not raise the financial issues until after getting agreement about their possessions. Withholding like this is an example of bad faith and is an example of using financial and informational power to manipulate the other party so you can get what you want.


Some mediators have questioned whether balancing power affects the mediator’s neutrality, whether it is showing bias toward the less empowered party. I do not believe that it does. Balancing power is not the same as developing an opinion about the issues or trying to lead the parties toward a particular solution that benefits one party over the other by way of the types of questions asked or suggestions made. What it does do is make sure that both parties are heard and understood and that any agreements made are fully informed and voluntary.


In the case of the mediation I did the other day, if we had let the man’s communication power go unchecked and unbalanced, the woman would never have gotten to voice her side of things. She may have been coerced into making agreements that she didn’t really want and likely would have been unsatisfied with the mediation. If we had let the woman’s power of control over their future interactions go unchecked and unquestioned, the man would not have gotten any of what he wanted and would have been very unsatisfied with the mediation.


How we balanced the man’s communication power was by making sure that the woman got a chance to speak with equal air time and making sure that both parties heard and understood each other. We did not let the man dominate the conversation, despite his natural tendency to do so. How we balanced the woman’s reward/punishment power of control over their future interactions was by asking questions and reality testing. If they still had financial arrangements between them (which is what they were agreeing to), would it really be possible to never see him? What would make her feel safe and comfortable if they see each other in the future?


Balancing power is an important part of mediation. It is a skill that mediators must cultivate. Since there is so much variability in types of power and how it is wielded, mediators must be very observant and flexible in how they use this skill. Without balancing power, a mediation like the one that I did the other day would not have resolved. The parties would not have been able to get closure on their relationship and move forward and likely would not have been satisfied with the mediation.


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elected officials mediating

Blog Entry #3 Mediation Between Elected Officials in Conflict

June 25, 2019

Washington State has passed SB 5560, a bill mandating that elected and appointed officials and judges in conflict use mediation before turning to lawsuits. This will save taxpayer money and will enable elected officials to save time and save face. We look forward to mediating these cases.



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Blog Entry #2 Communication After Divorce

June 1, 2019

*Please note: Details from the mediation mentioned below have been changed here in order to protect the clients' confidentiality.


We did a mediation recently for a couple who’d been split up for several years. The woman wanted to update the parenting plan for their kids and attempt to open communication with her ex. They had not been communicating for quite some time. The man had remarried, and his new wife acted as gatekeeper. The woman had to go through the new wife in order to reach her ex-husband. She only tried contacting him for issues concerning their children. He never responded in any way. It was very uncomfortable for the mother to talk to the new wife who had taken her place, so her attempts at contact dwindled. This put the kids in the position of being the go-betweens for their parents. This isn’t a good place for a child to be.


One of the things that happens when couples break up is that they invent stories in their minds about what’s happening at the other’s house since they’re not there to see for themselves. Sometimes, these stories are based purely upon their imaginings; sometimes they are based upon what the kids say. The children are in an inappropriately powerful position as go-between. They may tell the parent what they think he or she wants to hear, or they may portray things in a way that suits their own agenda. You can’t blame them for this. They are simply trying to learn how to navigate through the murky waters of their world.


The dad in this case had himself convinced that the mom was still trying to hang onto him despite his having remarried; also, he thought she wasn’t treating their children very well. There were misconceptions which could have been very easily cleared up with a phone conversation. This became clear when they discussed them in mediation. We created a way for them to communicate going forward. After all, they are both going to be parenting their children until they’re grown and on their own. In most cases, even though you broke up and don’t want to be part of each other’s life, if you have children together, you will still need to communicate for issues concerning the kids. Communication is key in all relationships, whether a couple is still together or whether the only continuing relationship is one of co-parenting.


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Blog Entry #1 Introduction to Empowered Communication

February 13, 2019

We would like to introduce to you a new business we’ve initiated in Yakima County – Empowered Communication. We do Mediation, Training, Facilitation, and Coaching aimed toward improving communication skills, resolving conflict between people, and helping clients achieve self-actualization in order to succeed in their work and home environments.


Our team has combined experience in mediation of 13 years and over 500 cases, in training and facilitation of 38 years, and in coaching of 16 years. We have the flexibility to provide services whenever and wherever needed; we have the ability to schedule services in an expedited fashion and at very affordable rates; and you can be sure that whenever you use Empowered Communication, you can depend upon receiving services from very highly experienced and award-winning practitioners.


Empowered Communication’s services can be tailored to your needs and can be provided in English or Spanish.


Let us help you improve your communication skills, resolve your conflicts, and achieve self-actualization and success. Check out our website or call, text, or email us for more information or to set up an appointment.


Felicia Staub

(509) 654-6379

[email protected]


Gabriel Muñoz

(509) 830-5351

[email protected]

www.empoweredcommunications.org

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Empowered Communication
PO Box 269
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(509) 654-6379

(509) 830-5351

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