How the Mediated Russian Prisoner Exchange Can Inform Divorce Mediation
In the recent prisoner exchange with Russia, German Chancellor Olaf Scholz was critical to the negotiations. The prisoner exchange was taking place behind the scenes for a long period, but timing was crucial for the end result.
The Right Person
In the hostage deal, the pivotal player was Scholz.
When selecting a mediator, it’s important to vet them and mindfully choose someone who is the right fit for both parties.
Different mediators have different styles, and different mediators have different levels of authority and ability to get the parties to the finish line.
When parties select a mediator that is the wrong fit, and the mediation has no traction, they tend to develop fatigue and wariness of the mediation process and jump ship to litigation rather than searching for a better suited mediator.
That initial mediator selection is critical.
Mediation Style
Scholz had his own style that was palatable and effective for both sides.
There are different mediation styles. One is “looping,” which is repeating what the parties say back to them. Looping can be good for couples that are highly cooperative but may be completely ineffective for more contentious mediations rife with friction and distrust. For those, you likely need a more authoritative style.
Some mediators will do ex-parte meetings – meetings between the mediator and one side only. Some mediators will only meet with parties unless both attorneys are present. Some mediators will not agree to have any attorneys present. Some mediators are flexible.
Know your mediator’s style in advance and ensure it resonates with you.
Timing
The prisoner exchange had been in the works for many months, but timing was an important motivator. Scholz’s cooperation felt tenuous to the sides. There was concern that Scholz would no longer be willing to mediate pending the upcoming United States election results.
Timing can be key in mediation. Often, especially in touch and go mediations, a dispute might be on the table for a while without progress. The parties don’t budge from their positions until an external circumstance promotes their agreement. There’s usually a narrow window of time in which the mediation could get done. Ride that wave!
The Deal
The next aspect is the terms of the deal.
There has been analysis and op-eds of the prisoner exchange deal discussing the justifications for exchanging purported criminals for innocent civilians.
Scholz defended the deal by stating that our overall humanity weighs towards doing whatever necessary to free the innocents, even if it was at the cost of releasing criminals and potentially incentivizing further detentions and hostage situations.
Similarly, a lot of mediations appear asymmetrical, but may still be equitable.
There’s a difference between a real power imbalance that we are all keenly on the lookout for in our role as mediators where we “represent neither side yet defend both sides,” and just the fact that both sides have different bottom lines and agendas.
For example, there might be a situation where a wife agrees to waive her husband’s pension thereby walking away from sizable assets or accepting much less in child support than she could be entitled, because she’s getting something else in return that’s more important to her.
In divorce and in high-profile prisoner swaps alike, our overall humanity, hopefully, wins – so long as each party preserves what is most important to them.
For more information, contact us.
Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com
