Negotiations and Love Songs: Dealing with Emotions in Mediation

Two disappointed believers
Two people playing the game
Negotiations and love songs
Are often mistaken for one and the same

Paul Simon, Train in the Distance

In characteristically cryptic fashion, Paul Simon’s Train in the Distance details the collapse of a relationship against the haunting backdrop of a train in the distance:  “Everyone loves the sound of a train in the distance / Everyone thinks it’s true.”  It is a song about optimism, failure and, maybe, just maybe, a bit of hope.

Then, as that far-off train whistles by, Simon drops the line:  “Negotiations and love songs / Are often mistaken for one and the same.”  Though I have listened to this song many times, I still don’t know what this means.  

The cynical view is that personal relationships, including the love songs, are all one calculated negotiation from start to finish.  But that doesn’t seem quite right.  

Instead, Simon could be making the point that after the collapse of a relationship, everything blurs together:  the love songs that characterized the good, early days, and the unhappy negotiations about custody, alimony and possessions, which follow.  Seemingly, the two are opposites and hard to confuse, but when a relationship falls apart everything becomes intertwined.

Those of us who make our living after the love songs go silent know the confusing confluence of emotion and rationality when personal relationships intersect with the law.  Divorce cases are the easy example.  We also see this with parents who pass the family home to adult children who are incapable of getting along without parental supervision.  Or trust litigation among family members who have stopped trusting.  Or suits between parents and children who have become estranged in ways unimaginable to strangers.

As lawyers we are trained to put the emotion aside.  We counsel our clients to look at the practical options and make good business decisions.  We try to stop the emotional tirades and move on to more familiar ground:  prospects for summary judgment, litigation costs and risk.  That is what we are good at.  What we are not so good at is understanding, much less dealing with, the emotional entanglement of these cases.

When we mediate cases involving failed personal relationships, emotions that may have been tamped down come rushing back.  Tears flow and memories intrude.  I have learned that this needs to happen.  Handing your client a box of tissue and awkwardly changing the subject is the wrong approach.  If someone is crying we have to find out why.  Only then can we begin to find legal solutions that will work.  

Some of the most gratifying moments I have had as a mediator are when parties with a destroyed personal relationship make it all the way through a very difficult mediation to a settlement, and then ask if they can talk privately with each other, without their attorneys present.  While their attorneys nervously pace outside, important words get said and damaged relationships begin to heal.  While rare, I have seen it happen more than once.  I’m hoping it will happen again.  

It’s kind of like a train in the distance.   

Reprinted with permission of Maine Lawyers Review.