Are There Hidden Players At Your Mediation?

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

(00:15):
Today I wanna talk about the third side of mediation. Many a times in mediation, we have, uh, what I would term hidden players, or we have an interested third party who might be part of the mediation, even though they’re not physically part of the mediation. That third party can be referred to as, um, the third side to mediation. So what is the first side? The first side would be you, you as the individual, are the first side. So as you prepare for mediation, you need to know what is it that you interests are, what is it that motivates you? What are your fears? What are your hesitations? Because you are an interested party in the negotiation, and therefore you need to know who you are, what you want, what drives you, what, uh, scares you so that you are not in hindrance to a potential settlement.

(01:16):
Then you have the second side. The second side is the opponent or the person that you are negotiating with. And it’s, and it’s important that you also know who that person is that will help you negotiate if you know what motivates them, what scares them, um, what fears or hesitations they may have, that will also help you negotiate. And then we have the third side. Now, the rules of mediation state that the only people allowed to be part of the negotiation is the two parties that are having the conflict. So typically in a family setting, that would be the mother and the father, or that would be the husband and the wife. And then if they have attorneys, their attorneys are allowed to be present. And then you have the mediator. So, you know, if it’s just the parties, it’s those three people. If it’s the parties, their attorney and the mediator, it’s those five people.

(02:13):
Uh, but nobody else is allowed to be part of the mediation unless the parties, not the attorneys. But unless the parties, the mother, the father, the husband and wife agree that a third party can be part of the negotiation. And if they do not mutually agree that that third party can join in, then that third party is not allowed to be part of the negotiation. A lot of times in mediation, um, you know, I get asked, Hey, is, you know, can you find out from the other side if it’s okay that you know so and so join in? And most of the time the answer is no. Um, that answer usually comes first from, you know, the party. Sometimes they don’t mind, but the attorney does not want that third party involved. So let’s first talk about what if they say yes, then what? Well, alright, mediation is private and confidential.

(03:08):
So that means that, um, in the event that the parties are not able to reach a settlement, nobody is allowed to go to court and talk about our negotiations that day. So nobody can go to court and go, well, your Honor, he said, she said he offered, she offered. Um, they’re not allowed to do that. It’s private and confidential. Um, now if a third party is agreed upon, let’s say that, um, a new spouse, or let’s say that a grandparent of the child, um, and everyone says, yeah, yeah, that’s not a problem. They can join. Well, in the event that a settlement cannot be had, they too are bound by the rules of confidentiality. So they’re not allowed to go tell everybody what happened in mediation. They’re not allowed to talk about private conversations. They’re not allowed to be called as a witness and testify about offers or the negotiations in mediation.

(04:06):
It is, they are bound by the same rules of confidentiality. So everything in mediation is to be private and confidential. Um, the only part that is not confidential is if I find out that somebody is committing a crime or abusing somebody, I have to report that. Uh, but other than that, everything we talk about is confidential. So sometimes having a third party there is important. Sometimes it’s helpful, sometimes it’s not helpful. So let’s first talk about, um, why it may not be helpful. Um, so it may not be helpful if they are encouraging somebody to continue with bad behavior, um, or if they are supporting somebody in their bad behavior. So let’s say for example, that we’ve got a, let, let’s just use the analogy, maybe it is a paternity matter or let’s say it’s post disillusion modification. And so let’s say that either the mother or the father, um, or former husband, former wife, let’s say that, um, now we’re in the negotiation and they are married and they have a either a spouse or a new spouse.

(05:21):
And let’s say that one of them is not acting accordingly, or let’s say that they don’t like the other person. Let’s say that the new, uh, spouse to the former husband doesn’t like the ex-wife. And what if they’re saying, no, don’t give her that. Don’t do that. I can’t stand her. Well then guess what? We’re gonna have a problem. Uh, they’re not being a productive part of the negotiation, and therefore now they’re hindering a settlement. They’re not actually helping, they’re not the voice of reason. They’re not calming down emotions. They’re actually in the way encouraging bad behavior or making accusations or stirring the pot. And they are certainly not helping. Um, if they’re not helping, they don’t need to be there. Um, and so, you know, sometimes that happens. Um, now sometimes there are hidden players. Let’s say for example, um, that we’re in mediation.

(06:18):
Let’s say that, you know, somebody says, Hey, you know, can my spouse join in the conversation? And they’re like, no. Well, there may be hidden players that are influencing the negotiation. They’re just not actually sitting at the negotiation table with all of us. Um, so who are hidden players? Um, a hidden player could be, in my example, a new spouse. Um, it could be a significant other, a boyfriend, a girlfriend. It could be, um, it could be just about anybody. It could be one of ’em that I’ve seen is I’ve seen, um, a grandparent to the child is a hidden player. Um, they’re not actually at the negotiation table, but they are definitely influencing the negotiations. Um, whether that is that they may be funding the litigation. And so they’re saying, no, don’t you settle unless you get this. And yes, I will pay for the attorney to go forward.

(07:17):
And so, you know, maybe one of the parties is negotiating, but they’re being influenced by their own parent on behalf of, um, the negotiations for the times sharing with the minor child. Let’s say that it is maybe their own parent, um, uh, or grandparent, or maybe it’s a sibling, maybe it’s a coworker. Maybe they had talked to a coworker, gotten a referral for their attorney, and now they’re trying to save face for that coworker. They’re a hidden third party that is part of the negotiation, even though they’re not. But they’re definitely influencing the negotiation. It could be, you know, another family member. There’s lots of hidden players. Um, sometimes hidden players can actually be useful. Um, a hidden player might be able to, uh, encourage them as they’re negotiating. They may be able to keep their emotions in check. Um, maybe they’re able to, um, encourage facilitation and relationships.

(08:19):
Maybe they, maybe that third party grew up in a family structure that, um, had good communication skills, conflict resolution skills. And so they can help their, uh, friend, their neighbor, their new spouse, their brother, sister, child, whatnot. Um, and so maybe they’re actually useful to help bridge the gap between the two parties negotiating. Uh, they can speak life into that party. They, like I said, that maybe they can manage their expectations or their emotions. Um, and so, you know, sometimes they’re the voice, voice of reason. And so it might be good to actually have them there. Um, I, for the longest time, I’ve been doing this for almost 18 years, and I have had the mindset from all of my training going, no to third parties. No to third parties. No, you don’t want them here. They’re gonna mess things up. But occasionally I have asked the parties to bring in their third parties because, you know, they’re hidden players.

(09:25):
I know as a mediator, they are hidden players. Um, a lot. For many years when we did mediation in person, they would be sitting and texting somebody else at the negotiation table and getting input and direction even though that person wasn’t physically in the room. Oh, they’re, they’re part of it. Um, I’ve even had it sometimes where, you know, we may have a break or they may say, Hey, you know, I want a bathroom break. We, uh, you know, we have a break or maybe we’re caucusing. Maybe I’m going back and forth between two rooms. And when I leave the room, they get on the phone and they call their spouse, they call their their parent, they call some third party and talk to them about the negotiations, get some encouragement, get some help, get some direction. And then they get off the phone when I come back in.

(10:12):
But they’re still influencing the mediation. Maybe they’d be helpful to actually have as part of the negotiation, because then whatever is said is private and confidential. It might be good. Look, if they’re gonna be part of it, you might as well bring ’em in and have them silenced inside the rules of, uh, confidentiality rather than them knowing everything, basically being consulted. And they have no rules of confidentiality surrounding the con uh, the conversation. So maybe it’s useful to bring them in. So lemme tell you a story about a time where, um, didn’t think it was useful, and then it turned out to be extremely useful. So one of the mediations I had very early on in my career was at the courthouse. And we had a young mother and a father that had a little boy, and they both brought two mediation with their attorneys, their mothers.

(11:06):
So we had both the paternal and the maternal grandmothers at mediation. Well, the attorneys said, look, they’re not part, they’re, they’re not coming in, they’re not part of the discussion. And so this was a long mediation. It went about to nine hours. And for seven hours we got stuck on extracurricular activities, whether or not the child was going to do extracurricular activities, who was choosing it, what about his grades, parameters. ’cause the child was having behavioral issues at some point. He was having gr uh, trouble in school at some point, but somehow all that was important was extracurricular and asking all the exploratory questions and trying to understand what was going on in this paternity. Mom and dad were never married. Um, just we were deadlocked. And so finally, um, you know, I, you know, meanwhile outside the room are the paternal and maternal grandmothers sitting in the lobby.

(12:04):
And I’m like, look, it’s not gonna hurt to bring them in. Why don’t we bring them in and get a different perspective? Bring in the kids’ grandmothers and, uh, and, and bring in the two women that actually raised these two young adults. So, uh, I got authorization and as a mediator, I do have to have authorization from both the parties that the third parties can join in. Then I have to do my rules of mediation again, letting everybody know what the rules of confidentiality are for these new third parties coming in. But also, I have authority and the parties know that I have authority to remove them at any time. If I feel as though they are no longer being productive and they are blocking communications, blocking negotiations, antagonizing, causing problems, I have no problem kicking ’em out and saying, okay, you’re done. You’re outta here.

(12:57):
You’re no longer allowed to be part of this conversation. So the parties agreed that they could come in. So we bring ’em in and I bring ’em up to speed on what’s going on, and oh my gosh, the parents, or not parents, the mothers of these two parents of the child, they start yelling at their own kids when they find out what they’ve been doing in mediation for seven hours while they’ve been sitting in a lobby and finding out what they’re doing to their grandchild, they started yelling at their own kids, going, you’re doing what? You’re not doing that with our grandchild. Are you kidding me? And here’s what we found out. We found out that, uh, well, actually, let me back up. Here’s what, here’s what they were arguing about. They’re arguing about whether or not the child was gonna continue playing football or not.

(13:48):
The father wanted the child to play football. The mother was like, his academics aren’t there, his behavior’s not there. The father’s like, yeah, but his behavior’s gotten better since he’s been playing football. And the mom’s like, well, I can’t argue with that. It has, but his grades are slipping. And we went round and roundabout trying to build parameters of, you know, well, okay, the kid has to have at least this GPA to continue playing, but if it falls, he can’t do this. And well then, you know, the mother was like, well, but I also want him to be engaged in other activities. The father’s like, no, he, it’s football. And we’re going back and forth and back and forth, try and, and between myself and the attorneys trying to get creative of how we’re gonna structure this. And when the grandmothers came in and found out what was going on, they went ballistic because they’re like, you are not sacrificing our grandson’s education for your own hopes and dreams.

(14:39):
We’re like, what do you mean your own hopes and dreams? Well, the father, um, had played football when he was younger and was actually quite good and was on track to potentially play in the big leagues. But in college he got hurt and then was no able, uh, was, was no longer able to play. So he’s now living vicariously through his own son and willing to sacrifice anything and everything to make his dreams come true through his son. The problem though was his son’s struggling academically having behavioral issues acting out, and the mother is just focused on school, school, school, school. So we’ve got two opposing views, one education only. The other extracurricular is more important even than education. And through extracurricular, he could obtain an education, but it’s the path is, you know, the path to the end game is different. So, um, the father had even, you know, we had, we had created the rules and talked about, well, what if we, you know, say, okay, look, if the child drops below a c average, well then he can’t play.

(15:55):
And the mother was like, that’s already happened. The school then wouldn’t let him play on the school team. So the father put him into the city team, which then the grades aren’t applicable, it’s about skill. And the kid had skills, so they still let him play even though he was suffering in school. And then there was the whole back and forth about, you know, priorities and you don’t prioritize this and you’re circumventing that. While we would never have known about the father trying to live vicariously through the son without his mother’s own input, giving us background on him, in fact, the mother of the child didn’t even know the background and didn’t know that that was the motivation behind the father’s desire for the extracurricular. These hidden third party players, the paternal and maternal grandmothers were very instrumental in creating an agreement and, uh, getting a settlement between the parents of the child because they gave us background and then they were also able to talk to their own children in a way that I couldn’t and the attorneys couldn’t.

(17:00):
And when the mother, uh, when when the, uh, paternal grandmother found out that her son was trying to live vicariously, she started yelling at her own son. And they had a whole mother, son back and forth screaming match right there in mediation about, I can’t believe you’re doing this, willing to sacrifice my grandchild. No, you’re not, mom, shut up. This isn’t about you. And back and forth and back and forth. But she was very instrumental. They were not in in the way, they were not encouraging bad behavior. They were controlling their own kids’ emotions, speaking truths, speaking life, and being able to help, uh, myself and the attorneys help the parties help themselves avoid court and reach an agreement that they could both live, uh, with. I know that in my own case, there were many a times where my parents were, uh, they were a hidden player.

(17:55):
I was trying to live up to their moral standards that they were setting. I know that my grandmother, uh, and grandfather were hidden players. They wanted time sharing with my kids as well because they lived locally. And so the more time sharing I got, the more that they got. And so they were hidden players. I know that on the other side, I know that, um, my ex-mother-in-law was a hidden player. She too had the same desire that my grandparents had. Um, but that was the grandmother, not the great-grandparents and was looking for time sharing, but also she was the one who was monetarily funding the litigation on the other side. So my ex would, uh, argue and would fight and we would, you know, have our conflict because number one, it was being funded. So that’s how it kept going on and on and on.

(18:45):
And of course, there was a hidden player where she was, um, also felt an obligation to try to win and do things because somebody else was paying. Somebody else was pulling the strings, somebody else was manipulating. And so she was fighting for things at times that she didn’t even care about herself, but there was a standard to live up to. Um, you know, she also, uh, came from a family of divorce. So there were expectations of all different family members, um, going from cousins and uncles and grandparents. And so, you know, there’s always hidden players beneath the surface that need to be acknowledged and addressed in mediation. Sometimes they’re helpful to bring into the negotiation because you know what? They’re gonna be dealing with the fallout. There are times where bringing in somebody’s new spouse is going to be very important because here’s the deal.

(19:38):
We’re setting up parenting plan and rules between the mother and the father of the child. But if there’s a significant other or a new spouse on the other side, then when that child is spending 50% of the time with the father, then that means that that new woman is gonna be around. She needs to know what the rules are. She needs to know what was negotiated, and it’s better that she hears it in mediation as it’s being created. Then she gets her husband’s interpretation of what was done, which might be a bit skewed, and that might leave, you know, a different perspective on that side or vice versa with the mother and her new husband. You’ve gotta look at this from the child’s point of view, not from your own point of view going, no, I just don’t like them. I don’t want a part of it.

(20:26):
Well, look, if they’re gonna be in your child’s life, then maybe they need to be part of mediation. Maybe they need to hear the rules as they’re being negotiated. They need to hear what’s going on. Um, and look, if they’re gonna have input on a day, day, day to day basis, raising that child when they’re in, you know, the home of that parent that we’re creating the parenting plan for, then you know what they need to know. Because there’s a lot of things in the parenting plan that talks about third parties. It talks about, well, what happens when a third party brings the child to a doctor’s appointment and the other biological parent is there? They need to know the rules. Well, what about if, if the child is left home with them and the other parent calls and their spouse is gone, they need to know what the rules are regarding communication.

(21:16):
Well, what about third party pickup and drop off? You know, are they allowed to talk? Are they allowed to communicate with the other parent? Are they allowed to drive the other child? What about if they’re, they’re the ones that are taking the child on a vacation? Like, what are the rules? And you know, in the enforcement clause, there’s a whole section about, well, if third parties are used, and if third parties violate, then it’s the parents who utilize the third party that can be held accountable. It’s necessary that these third parties who are babysitting, that are transporting, that are assisting in this entire negotiation and the child rearing, uh, process, they need to know what is allowed and not allowed because they’re part of it. And so a lot of times I find that it is helpful to have them as part of the negotiation.

(22:06):
I know that emotionally you may be like, I don’t want them part of it. They don’t need to be part of it. This has nothing to do with them. But when it’s all said and done out in the real world, if your child is gonna be in the other person’s home and they’re around, they absolutely have something to do with it. And they need to know what’s going on. And it might be best to have them hear it as it’s being created between the attorneys and a neutral person like myself as the mediator. And to get it, like, this is not their spouse’s interpretation. This is what it actually says. This is what it means. And that can help the community as a whole maintain peace because you don’t want that third party potentially undermining then, uh, the agreement causing problems. And so, look, have an open mind as the party negotiating. Have an open mind to allowing a third party to actually be part of the process. Number one, they’re gonna be bound by the rules of confidentiality opposed to having them and consulted anyway, and they’re not part of the conversation. Um, so they’re not bound by the rules. And also understand that if they’re, if they are going to have contact with the child, we’ll then look, they need to know the rules.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q&A bonus episodes where we’ll answer your questions and give you a personal shoutout.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.

Matthew Brickman:

For more information about my services or to schedule your mediation with me, either in person or using my iChatMediation Virtual Platform built by Cisco Communications. Visit me online at www.iMediateInc.com. Call me at 561-262-9121, Toll-Free at 877-822-1479 or email me at MBrickman@iChatMediation.com.