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March 14-21, 2007

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Monica Vantoch

Photographs by Steve Hahn
Divorce, Santa Cruz style: Monica Vantoch uses her extensive legal knowledge and calm demeanor to help couples mediate their divorces cheaply and with less conflict.

Lawyers and Courts May Break My Wallet, But Words Will Never Hurt Me

Local mediators provide an alternative to the cycles of escalating conflict and cash sinkhole that are our legal system

By Steve Hahn


Slow Down. Ask questions. Listen.

Sounds simple, doesn't it? Yet, when mediators from Nonviolent Communication Santa Cruz (NVCSC) enter a tense, conflict-filled workplace, they find these basic lessons were often the first to fall by the wayside.

In divorce court conflict can reach a boiling point, as emotional issues pent up over long marriages escalate into shouting matches in the courtroom that can become so vicious they spill over into the halls.

Yet for each of these unique problems, there is an alternative to high lawyer fees and continued frustration: mediators.

The job of Santa Cruz's diverse and growing field of divorce, workplace and small claims mediators is to get past the value judgments, the endless back and forth demands and the accusations of nefariousness that can escalate conflicts out of control, and instead get at the underlying issues that are actually driving the conflict.

Nonviolence in the Workplace

NVCSC mediators have resolved a range of conflict situations in the workplace, from those that are endlessly complex to those that are surprisingly simple.

Jean Morrison, certified mediator for NVCSC, remembers facilitating a multipart mediation workshop for a small business. In the first session, she introduced different communication practices that could be implemented in the office to reinforce beneficial behavior. When she came back a couple weeks later for the follow-up session, she was stunned.

"They all were just amazed in what the difference in morale was," Morrison says. "The employees were thrilled just because they were hearing more [gratitude] from their boss, and the boss was thrilled because he had been wanting to say it, but had figured that everyone knew it already. It was a huge shift in their company."

Of course, not all conflicts can be resolved overnight with a simple "thank you"; many mediation sessions can take weeks and still leave parties feeling somewhat uneasy toward each other. Mediators can help get the ball rolling, though, and initiate conversations that end up changing the quality of struggling relationships in the long term.

Kelly Bryson, another of NVCSC's certified mediators, believes that even one visit by a trained mediator from the center can help set the stage for a safe, productive workplace where people feel that their voices are being heard and their needs responded to.

"Part of what we're doing is evolving a corporate culture. We're supporting the development of it by adding the acknowledgment piece into their culture. That's a very good preventative measure. It prevents conflict from coming up," he says. "It's a consciousness and value system that you're trying to live."

When NVCSC mediators sit two sides of an issue down, the first thing they do is ask participants to put any demands they have aside and focus solely on the emotions and needs they feel are being infringed upon. This "slows down" the process.

"There's a focus on creating that sense of connection as a starting point," Bryson says. "Another starting point is to try to get all the needs on the table as distinct from strategies: the need for safety, the need for trust, the need for progress. People often want to rush to some sort of a solution and we're holding them back from that until all the needs get on the table. Then we can look for creative solutions that take into account everyone's needs."

People who had been at each other's throats in an unregulated atmosphere are often surprised at how much agreement there is on an issue after a few pointed questions from the mediator.

Morrison recalls one such session: "It was four hours with three people who were involved in business together and they all three named trust as that first issue that was important for them to talk about and find a way to re-establish. They all were missing it and wanting it and they really needed to hear each other about that."

Once the issue of trust had been agreed upon as the underlying issue, the other pieces of the puzzle, involving large sums of money, fell into place easily.

"They never would have been able to ever work out anything monetarily until they had that trust and deep understanding," she says. "They just had to really give time to hear each other at that deeper level."

There are complications that can arise in workplace mediation that may not be present when resolving conflicts in a more egalitarian relationship, however. Since supervisors are usually the initiators of mediation services, the power dynamic in the workplace is often perceived as transferable to the mediation session.

"People often come in with that sense of, uh-oh, there's a power differential here," says Morrison.

Mediators attempt to re-engineer this power dynamic by pausing the dialogue when it gets abusive and translating everyone's language into a list of nonjudgmental observations.

"This process really helps neutralize that because we really look at what's underlying this [conflict]," says Morrison. "What are everyone's needs? The needs are all equally valuable, so when people get connected at that level it's almost like the power differential falls away."

In many cases, supervisors are unaware their words or actions are being perceived as threatening by their employees, say mediators, and just giving employees a safe space to express how the supervisor's actions are affecting them can create a monumental change in the relationship.

"They weren't feeling safe, comfortable or able to have those difficult conversations," says Morrison. "With a mediator there's support for people to say what they need to say and get heard."

Oftentimes the supervisor is left with not only a re-energized workforce but also a new set of skills that can help them easily resolve conflicts in the future, according to NVCSC certified mediator Christine King.

"When I go into a business, it's almost always the supervisor that contacts me and they'll usually say something like, 'Jean and Kelly aren't getting along,'" King says. "In my experience it's not so much about Jean and Kelly, it's about the supervisor themselves. They don't have the skills to deal with that, so if Jean or Kelly comes and complains about the other person, the supervisor is kind of flummoxed."

NVCSC mediators, whether they're working a one-day conflict resolution or a six-week communication workshop, ultimately hope to leave a new, more compassionate, workplace culture in their wake.

"Nonviolent communication is a set of tools for communicating, but more important than that, it's a kind of consciousness," King says, "that everyone's needs are important. Everyone's needs matter and we try to find a resolution that supports everyone's needs. We try to translate anything that we hear that might be blaming or demanding or interpreting or valuing or labeling the other person into this container, this other language of 'What are we observing? What are we actually feeling? What are we needing or requesting?'"

Conflict Resolution Center director Nancy Heischman

By the books: Conflict Resolution Center director Nancy Heischman helps people survive small claims court without ever peeking inside these dry tomes.

I'll See You in Court!

While conflicts in the workplace rarely end up before a judge, monetary or property disputes end up involving litigation in a surprising number of cases.

Just think of the doctors who refuse to help a dying person in public, fearing that a wrongful death lawsuit will be brought against them if they fail, or the man who filed the infamous spilled coffee lawsuit against McDonald's that led to warning labels (Duh! It's hot!) on your morning cup of coffee. There's even the apocryphal story of the man who successfully sued for code violations when he fell through a skylight while attempting to rob a house. Americans pick up a phone and call their lawyer faster than Wyatt Earp could get off six shots from his revolver.

This tendency toward litigation in our society has left Santa Cruz County with an understaffed and potentially overburdened small claims court system. Judicial Officer Kim Basket and a small support staff would drown under the flood of cases if the volunteer mediators from the Conflict Resolution Center (CRC) didn't help her by diverting part of the stream of cases toward alternative dispute resolution.

"It's effective because we're able to calendar about 20-25 matters and have one judicial officer basically handle all of them," Basket says. "We'd have a whole backlog of cases if it weren't for the professional efforts of these mediators."

The small claims mediation program started in 1994 after California passed the Dispute Resolution Programs Act, which mandated that a percentage of filing fees for civil cases in each county be set aside for alternative dispute resolution. The Santa Cruz County court was looking for a program it could spend its money on, and contacted CRC to develop a program after being inspired by a similarly organized mediation program in Butte County.

The mediators now offer their services to small claims litigants in the courthouse every Thursday afternoon.

There are a number of benefits to staying out of the courtroom. A judgment against you in small claims court will stay on your credit record for seven years, while a badly negotiated deal in mediation will never grace the ears of a banker.

Nancy Heischman, executive director for CRC, also notes that mediators, who are not tied down by formalities, offer a greater flexibility to both plaintiff and defendant.

"The judge has to look at the case and decide it strictly on the basis of the law and the evidence presented and sometimes that's a completely separate issue from what's important to the people involved," she says, adding that some cases have been dismissed after a simple apology.

The mediation program further saves court time because there is no appeals process. Since both sides have signed on to a mutually reached understanding, the agreement is legally binding on both parties. If Basket or another judicial officer ever sees the case again, the only issue is why the mediated agreement failed.

"I never have to hear the underlying issue again," says Basket.

Mediators in the small claims program are successful because they can quickly analyze a situation and run down the legal ramifications of each side's arguments (most mediators are former or practicing lawyers). This usually awakens the spirit of negotiation between the two parties, who oftentimes tone down their emotions as they come to realize neither they nor their opponent has an airtight legal case.

"As a mediator what you're doing is bringing to the conversation what they're not bringing to it because of the conflict or the hostility," says Heischman.

When opposing parties enter a courtroom there is a tendency toward polarization of defendant and plaintiff, as each side must prove the utter legal wrongness of their opponent and the extreme legal correctness of their own case.

Divorce lawyer and mediator Monica Vantoch likens the atmosphere in most courtrooms to two mules pulling toward watering holes on opposite sides of a plain. Mediators can help steer clients toward an agreement that won't require ripping anyone's figurative legs off.

In small claims court, conflicts over small amounts of money can often tragically rip apart relationships that were founded on something much more substantial, says Heischman.

"The thing about conflict is that it does damage to relationships," says Heischman. "The longer it goes on the harder it is for people to see each other for real. There are a lot of layers built up by the time it gets to small claims and in mediation you can start to peel away some of that and get down to what's underneath."

Once you get to the underlying issue, she says, an agreement becomes much easier to reach.

"It's the outer layers that are the hard part," she says.

After CRC volunteers proved their effectiveness in mediating small claims cases, the juvenile court approached them about the possibility of running a Victim-Offender dialogue program for juvenile offenders.

Unlike the small claims mediation program, the Victim-Offender program does not replace the court process. Accused criminals have their cases heard before a judge, and, if they're a first-time juvenile offender who is judged guilty, they have the option of going through the CRC program for sentencing. This allows the victim to determine a sentence they think fair considering the young age and unique circumstances of the guilty party.

"The victim gets to talk first and ask questions. A lot of times victims feel 'Why me? Did this kid pick out my house or business to vandalize? Were they watching me?'" says Heischman. "It's really deeply unsettling to have all that unknown. Ninety-nine percent of the time they find out that this is a kid who has never done anything like this before; that they were acting on impulse, or had gotten drunk. It's a big relief for the victim to hear that."

While the victim is comforted by the knowledge that the perpetrator of the crime against them was given a fair sentence, the real winner of this program often ends up being the offender, according to Heischman.

"It's obviously really hard for the offender to confront that [victim], but it helps them come to some sort of closure in the situation. They have to face the human consequences of their actions. It brings a sense of closure that going to jail wouldn't," says Heischman. "It's a way to prevent kids who have offended once from going into the system lifelong."

Divorce Mediation

Conflict with co-workers and business partners can destroy some pretty close relationships, but few conflicts wreak havoc on a more intimate relationship than a divorce proceeding. While the practice of divorce has become commonplace, it usually still takes a pretty nasty dispute for two people who have pledged to stay together before all that is sacred to break that bond for life.

When this dispute pours over into a courtroom with pricey attorneys and a time-consuming legal labyrinth, the temperature is often ratcheted up to an explosive degree. A mediator can help cool off emotions and get people to come to a mutual understanding on the issue that broke up their marriage, which ends up saving both parties money on legal fees at the same time that it smoothes the often tumultuous path toward co-parenting agreements. This generally allows for a kinder and gentler post-marriage relationship and can prevent bad feelings surrounding the complicated financial repercussions leftover from the court case itself.

"My experience is that clients are often not satisfied with the result [in court], even if they win," reflects Vantoch. "I've seen clients walk out of the courtroom angry and frustrated even after they get exactly what they've asked for because they are still angry with the other person. My belief is that this system allows for better satisfaction."

When judges are hearing court cases, they use a computerized calculation system that analyzes each party's income level and expenses in order to determine the proper level of spousal and child support. This system can be problematic in that it does not take into account the possibility of a job loss, it requires modification for every change in salary and it ignores escalating or decreasing expenses in the future. In mediation, Vantoch is able to talk with couples about what is truly important to each party, and she can take the time to help foster negotiation up or down from the court-mandated number.

A recent mediated case in her office led to a higher-income party agreeing to help pay for the uncovered medical costs of the lower-income spouse, even though the court calculations wouldn't have required this. While the exact costs of the medical services were a point of contention for the couple, Vantoch was able to clearly separate emotional from factual content and help each side reach an agreement they could both feel comfortable with. Vantoch also helped negotiate a deferred home sale with the couple, which will allow the lower-income spouse to stay in their home with the couple's adult child.

According to Vantoch, who also litigates divorce proceedings, these alternative solutions would never have even been discussed in a courtroom.

"The court turns children into assets by linking child support directly to time-share" she says. "Here what we can do is to separate the money and the time and find out what the budget is and what the need is."

Lucy Gowan, who has assisted Vantoch in her family law mediation cases for over 16 years, has seen firsthand the confusion of frantic and frustrated couples trying to decode divorce law in the middle of their court hearing. She believes mediation provides a safer atmosphere than the court, one in which everyone has equal access to information and is granted time to consider the myriad legal and financial options available to them.

"The court is simply not equipped to afford people the luxury of trying on options for size," she says. "The parties have to live with the decisions made in a split second."

Mediation will also save you a pretty penny by combining your resources, adds Gowan.

"Two persons pay one hourly fee," says Gowan. "When I first came to work in this office, a couple made an appointment. They had withdrawn from the court scene after a particularly nasty day when each of them simultaneously realized that they had paid their attorneys upward of $20,000 to shout at each other on their behalf with no results, a process which they knew they could perfectly well do on their own. They came into mediation and a few sessions later, they had reached an agreement that they were both able to live with."

Borrowing a phrase from the famed Mastercard commercials, Gowan sums up the cost of divorce mediation this way: "The cost of mediation--about $1,000. The cost of sanity--priceless!"



Mediation Services in Santa Cruz County

Anita Maria Elliot, Family Law Mediation
Elliot has worked with thousands of families since the '80s to resolve family disputes out of court. According to her website, "Anita is an avid and loyal fan of the Boston Red Sox but warmly welcomes all Yankees fans to her practice." How conciliatory; a true mediator indeed. She graduated from Santa Clara University and is a member of the California State Bar. Go to www.mediate.com/aelliott or call 831.426.0237.

Anne Lober, Family Law Mediation
Lober works for the children. She hopes her out-of-court settlements will help "the whole family come through the crisis in the best way possible." She is a member of the Santa Cruz County and California State Bar. She also tinkles the ivories (and we hear she ain't bad!). Call her at 831.459.6000 or check out www.divorcehelp.com.

Chip Rose Mediation Center
A former litigator who saw the damage the court system could do to his clients, Rose decided to create an alternative by incorporating mediation alternatives into his practice. Over 20 years later and he's still at it, offering mediation services mainly to couples who are negotiating the terms of their divorce. Rose is certified as a Specialist by the California State Bar. 831.429.9721 or www.mediate.com/crose.

Clarke Dixon-Moses, Family Law Mediation
Dixon-Moses has specialized in mediating family law disputes out of court for over 25 years, but he also delves into intra-school disputes periodically. He is a member of the California, Santa Cruz and Los Angeles Bar associations. He also loves poetry! 831.430.0880 or www.mediation4all.com.

Conflict Resolution Center Santa Cruz
This center offers a variety of conflict resolution options, ranging from communitywide mediation programs to individualized mediation in the Santa Cruz County court system. They also offer workplace mediation and periodic public workshops that allow anyone to pick up some useful conflict management tools. www.crcsantacruz.org or 831.475.6117.

Jim Danaher
When Danaher founded his Santa Cruz law firm in 1993, he wanted to focus on family law mediation and alternative dispute resolution. He is a member of the Santa Cruz County and California State Bar. According to his Nolo listing, he chose to become a lawyer "to help people and have an influence on society." Hire this idealist to mediate your divorce by calling 831.427.2727.

Monica Vantoch, Family Law Mediator and Attorney
Having once been involved in racial conflict reduction negotiations with African American communities and Ku Klux Klan members, Vantoch can surely handle your divorce mediation. She has also worked in various forms of communitywide mediation and even helped model legislation for the nation of Cyprus! Her law degree comes from the Northeastern University in Boston and she is a member of the California, Santa Cruz and Family Law bar associations. Visit www.santacruzmediation.com or call 831.429.8561.

Nonviolent Communication Santa Cruz
Certified mediators from this center are available to train couples, parents, businesses and religious congregations on the principles of nonviolent communication. We're not just talking about hate speech here, but any communication that involve judgments, demands or blaming, which they describe as linguistic violence. Learn to instead express your own needs, feelings and desires and listen more carefully for these expressions in others. Unleash your "natural generosity of spirit." Also, be sure to catch NVCSC's founder Dr. Marshall Rosenberg when he comes to town from April 6-10 to give public workshops. Call 831.459.6919 or go to www.nvcsantacruz.org.

Stephania Francone, Family Law Mediator
Francone prides herself on her Jungian background in applied transpersonal spirituality and her more traditional legal experience as a judge pro tem in San Francisco, San Mateo and Santa Cruz County courthouses. She is a member of the California, Italian American and Santa Cruz Bar Associations. Her specialty is mediating family law disputes outside of court. Call 831.684.1077 or visit www.civilizedlaw.com.


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