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Why Do I Want You to Stay in the Room?

by Joy Rosenthal

October 2018

Joy Rosenthal's Mediation Blog

Joy Rosenthal

I want to say a word about neutrality, which is a very important concept in mediation. The role of a mediator is to act as an intermediary between the parties, and to help the parties reconcile conflict. How the mediator does that can vary a lot, depending on the type of conflict the parties have, the style of mediation used, and, of course, the temperament and experience of the mediator.

One of the big differences between mediation and arbitration is that the mediator does not make decisions, but works with the parties so that they can make decisions together.

Most of my work is with divorcing parties — there are only two parties involved, and the topics we discuss are clearly defined (division of property, spousal and child support, and creation of a parenting plan).

My training is in “Understanding-based” mediation, which has certain characteristics — the most obvious one is that I do almost all work with both parties in the room, and rarely caucus (meet with clients separately). I may work extensively with one party or another during a session, but my goal is to help each person define their own needs and interests, and to understand the needs and interests of the other. I do not see myself as an outside person who determines some objective truth, or makes some pronouncement. Instead, I try to focus on each participant’s experience of what happened and projection of what will happen.

The reality is that almost always, clients come at different points in the process. One person has been thinking about — and perhaps planning — divorce for a long time, while the other one is newer to the process. One may accept it more than the other. One may be angrier than the other. Or more worried about the future. Or more concerned about the kids. Or have more family support. Or … There are so many differences.

Sometimes it may seem as though I am favoring one person over another because I am spending more time focusing on him or her. This usually occurs when I am seeking to better understand their point of view and the complexities of their situation. Sometimes I am asking the clients very personal questions in front of their ex — who is, almost by definition, someone who has broken their trust. Almost always, I am asking clients to confront their new realities in ways that they may have spent a lot of energy avoiding.

I am not trying to be distant and objective. I am seeking to understand and empathize — to really understand where each person is coming from. By asking hard questions in front of the other person, we create better understanding between the parties. It is hard to listen when you are in direct conflict with someone, because you are working so hard to be heard. It is easier to hear when your ex is speaking to someone else. At least that is the theory.

My goal, as I say to my clients, is to create the best plan that works for everyone involved, given their resources. I try to create an environment that fosters group decision-making.

Why do I want you to stay in the room? Because it is very hard to come to an agreement without understanding the other side. Because I want you to see exactly what I am saying to the other person. Because I want you to trust that everything is happening right in front of you.

Why do I want you to stay in the room? To help you come up with a plan that each of you can live with.

Joy S. Rosenthal, Esq. is a compassionate mediator, a skilled negotiator and an intelligent litigator with extensive background in the private and public sectors. Joy served as a Staff Attorney at the Legal Aid Society's Juvenile Rights Division for nearly 10 years, where she represented hundreds of children and teenagers in foster care, child welfare, custody, adoption, PINS (Person in Need of Supervision) and delinquency cases in the Bronx and in Brooklyn. Joy was honored to be selected for a one year fellowship at New York University School of Law's Family Defense Clinic, teaching law students to represent parents in child welfare proceedings. Joy founded Rosenthal Law & Mediation in 2006. The firm's practice centers on family and estates law, as well as family-based mediation. In addition to her private practice, she mediates custody and visitation disputes for the New York City Family Courts and serves as a Guardian Ad Litem, protecting the rights of youth and the disabled in New York City Surrogates Courts. She also serves as President of the Board of Directors of the Family and Divorce Mediation Council.

Website: www.joyrosenthal.com

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