Interview with a Retired-Judge Mediator
© 2013 By Bill Eddy, LCSW, Esq.
On March 20, 2013, I sat down with Judge Susan Finlay (retired), who became a divorce mediator with the National Conflict Resolution Center in San Diego in 2012 after many years as a Family Court judge. I am the Senior Family Mediator for NCRC, when I’m not out giving seminars. We discussed mediation, family court, high conflict cases and domestic violence. I was impressed with the thinking and the compassion she has for helping people resolve their cases out of court. I know several judges now who prefer mediation and recommend it in most cases instead of going to court, for the reasons she explains.
Bill Eddy: Since you’ve been a judge, what do you do at the beginning of your mediations to help people feel comfortable with you and comfortable about the mediation process? How do you explain it to them?
Judge Finlay: I introduce myself and ask them if I can call them by their first name, and I tell them they can call me by my first name. Some do and some choose to call me “Judge” and that’s okay – it’s their choice. I point out that the mediation process is an opportunity for them in a safe environment to resolve their dispute. There aren’t any rules, except that they can’t interrupt each other and they need to listen to each other as hard as they can. If they say “No” to an option proposed by the other party, then they’re going to need to come up with an alternative solution.
Bill Eddy: So you emphasize that they’ve got to come up with proposals?
Judge Finlay: Absolutely! I see my role as helping them think outside the box. And if something comes to my mind that they haven’t thought of, I would try to incorporate it somehow into some of their suggestions. I want to get them to have an opportunity to settle it themselves as much as possible. I tell them that they’re in charge. I also tell them how important it is to be honest about what they really want. Because if they’re not – then any agreement that’s reached might not reflect what they really need or want. Or we might not get to an agreement because their lack of forthrightness is a barrier.
Bill Eddy: How do you see yourself, as a mediator, being different from being a settlement judge?
Judge Finlay: A settlement judge can say “If presented with this kind of evidence, here’s what I would do.” What I say in mediation as a retired judge is that “In all probability, if you go to trial this is the range of what you can expect to see.” It just doesn’t have the same force, but it’s a similar message.
Bill Eddy: So it’s kind of reality-testing? Not telling them this is what you should do?
Judge Finlay: No, no. As a mediator I feel much more constrained. I say “This is what I think might happen if you go to court.” Or “From my experience I have seen many cases like this and they usually result in an order ‘X, Y, Z.’” But I wouldn’t say “You should do this because it’s your best interest.” That crosses the line and I wouldn’t do that.
Bill Eddy: That’s not mediation.
Judge Finlay: Right. As the mediator, you’re not in the business of predicting what will definitely happen. You can just say “Generally, in a long-term marriage, if one earns more than the other, there is some support for a reasonable period of time.” In other words, it’s pretty vague.
Bill Eddy: If the parties say “We really want you to help us figure out what to do,” would you still tell them what you think would happen in court or would you just see if they wanted that? If they said “No, we already have our own ideas of how to make it work.”
Judge Finlay: I would inquire: “Would you like me to evaluate your proposals based on my experience?”
Bill Eddy: And if they said, “No, we think we’re close.”?
Judge Finlay: Then I wouldn’t. But if they say “Yes” – both of them – “We really would like that.” In fact I had one couple who said “That’s why we’re here. That’s why we came to you.” But it has to be both of them. I would feel supportive of both. We’re neutral, but my bias is for them both to walk away feeling successful; feeling that they’ve accomplished something; feeling they can go on with their lives. That’s very important to me. I regard it as an opportunity to help people get to that point. As a judge, I couldn’t. I mean I could certainly be respectful and wish them well and say “I hope that things work out well for both of you.” But it’s not the same, naturally, as helping them actually get to that point.
Bill Eddy: A good example of what you can do in mediation is that case that I had, that had been to court for a temporary spousal support order – and you were their judge a year ago or so! One party was very frustrated and the other was very satisfied. But it was a temporary order and they agreed to make their long-term decisions in mediation.
Judge Finlay: That is a good example. The court is not set up to help people work it out between them. When they came to you for mediation and they did, in fact, work it out. Certainly, as the judge, I couldn’t sit down and say “Let’s work this out.” The hearings are not set up to do that.
Bill Eddy: Right. And their final agreement was a very refined agreement, with information that they had that wouldn’t have come out in court about their personal circumstances. They also made a “step down” support plan [gradually reducing over time] that the court wouldn’t do. But they knew what they needed. It was very fine-turned.
Judge Finlay: They weren’t represented, right? So the problem is I saw them as “Pro Pers.” Now if they had had attorneys, it’s possible that they could have met and had a four-way and gotten together to work it out. But without attorneys, they wouldn’t have had the expertise – or even thought of – the issues that you helped them with in mediation. They probably wish they had mediated before they went to court!
Bill Eddy: One of the questions I’m asked is whether we can – or should even try to – handle high conflict cases in mediation, because high conflict cases often have one or two parties with a personality disorder. Do you think it’s inevitable that they will – or should – end up in court?
Judge Finlay: A high conflict person – especially one who may be sociopathic or narcissistic - may be very charming and think he – or she – is superior. But also can be very rational. To think that a person with a personality disorder is necessarily incapable of mediating because they are overcome by emotionality, is just not what I have observed or seen in court or in mediation practice.
Bill Eddy: I would agree. I think that the environment influences which part of the person you get. The high conflict people have a narrower range, but they still have a range. People don’t realize you can bring out the best or the worst in them by how you act towards them.
Judge Finlay: In the court you have a pre-set environment with a judge in a black robe looking down on the parties. In my mediations, I tend to be much more informal, in my attitude, in my posture and how I proceed. But with someone I suspect of having a high conflict personality, who might be influenced in a positive way by a person in authority, I would probably have him call me judge. I can always get more informal, but if you start informal then you can’t get formal. So in my initial insight into the case, if I think I’m dealing with a high conflict personality, I tend to be more formal because I want to use a more authoritative voice. I’ve gotten to be more “evaluative” in my mediations with a situation like that.
If you’re dealing with high conflict personalities – one or the other or both – sometimes the one who appears to be isn’t and the other is. So you have to be really, really careful. And I have been surprised on several occasions.
For example, I had a case with the issue of child custody. And the parent who I heretofore had thought was the non-high-conflict personality, leans forward and says “I want 50%!” All of a sudden my mental picture of this person shifted, because here was a parent who had little involvement in the children’s lives up to that point in time. It was such a threatening – almost assaultive act the way it was said, that I had to sit back and rethink: “Wait a second, what’s going on here?”
Bill Eddy: So they may be quiet at first about things they may be very rigid about later on?
Judge Finlay: Yes. I’m sure you’ve seen that a high conflict person can be very charming at first, and act about the other person, like: “He’s so impossible.” Or “She’s so impossible.” I even had one of them wink at me – as if to say “We’re in it together – against ‘the nut.’”
Bill Eddy: That’s what I find. The high conflict people are “working” you. Whereas a reasonable person just figures “I’ll give you the information and we’ll come up with something reasonable.” The high conflict person is always looking for a way to get an advantage.
Judge Finlay: But I think the high conflict person - most of them, except for the grandiose narcissist perhaps – still need reassurance. They want to be heard. They want to know they’re heard. They want to have that acknowledged. So the mediation process is their opportunity to say “Here’s what’s important to me.”
Bill Eddy: Let me ask you about domestic violence cases. There’s two types that I’ve seen: One, where they already have a restraining order. The other is where it’s not totally clear, despite asking at intake, but there are strong hints. I wondered if you have any particular way you deal with those?
Judge Finlay: I’ll take the latter one first. If one of the parties appears to be overly submissive or willing to “give away the store,” I would meet separately with him or her and say “I’m observing that there’s something going on here that you haven’t told me. Now you can tell me in confidence. I’m concerned here for you. You may today say “Oh, give him everything.” But then a week from now, say “Oh, what have I done?” So I say: “My concern is for you – you need to help me here.” Sometimes they’ll say “I know exactly what I’m doing.” And other times they’ll say “I’m afraid!” It’s up to the mediator to close it down if it becomes apparent that this is not one of those cases that can be mediated.
Now in the first scenario, if there’s a restraining order and it makes an exception for them to be together in mediation, but they arrive separately and leave separately – like 15 minutes apart and may have an escort to the parking structure to avoid a scene at the car – then I think that those cases can be resolved in mediation. You can also go over the restraining order and make sure that the restrained person really understands what it means. And help the protected party understand too. Sometimes, they call and say “Oh, come on over, don’t worry about the restraining order.” But they can’t do that. They could be arrested. They need to know that. This is serious stuff. So they need to understand what they can do and what they can’t do. Another hopeful thing is that it’s not forever – although a few of them are. They’re usually three years, although they can make a motion to shorten it.
Bill Eddy: I’ve seen a lot of domestic violence cases in which they come up with a fairly reasonable agreement in mediation – child-sharing, support, and so forth – even though they have a restraining order. Neither party has “given away the store.” Do you get that sense?
Judge Finlay: Yes, but I would still be cautious because the person’s desire to appear reasonable may be out of fear. I would also certainly encourage classes to educate themselves. Treatment programs. If substance abuse is also a problem, I would encourage substance abuse treatment.
Bill Eddy: So your approach is more one of problem-solving than trying to find blame?
Judge Finlay: Yes. Human relationships are complex. Problem solving is what you can do in mediation.
Bill Eddy: One thing I always tell people is that I can’t mediate the past, so let’s talk about what you want to do in the future. They seem to focus on the more positive part of the range of their behavior with that. Otherwise, they’re just defending everything they’ve ever done – and lots of what they’ve done they shouldn’t be defending. But they feel they have to in legal decision-making.
Judge Finlay: Neither person wants to be seen as the bad person. In mediation I can help them focus on the future. Sometimes I would say in court: “I’ve considered all of the evidence and I’ve listened to your attorneys. But, Mr. and Mrs. Jones, I know that I don’t know all the realities of your case. All I can do is base the judgment on what I do know.”
But I’ve also said: “You know your children. I would encourage you to work together to come up with workable solutions to these parenting problems.” And that’s what I’m trying to do in mediation that I couldn’t do in court.
Judge Susan Finlay (ret) does her mediations with West Coast Resolution Group, a division of NCRC. For information: http://www.westcoastresolution.com/mediators/hon-susan-p-finlay
Bill Eddy is a lawyer, therapist, and mediator. He is the co-founder and Training Director of the High Conflict Institute, a training and consultation firm that trains professionals to deal with high conflict people and situations. He is the author of several books and methods for handling high conflict personalities and high conflict disputes with the most difficult people.