BACKPACK OR BAHAMAS By: Judge Michael Panter (Ret.’d)
Light rain on the Tribune Tower patio interrupted my completely engaging conversation with popular columnist Heidi Stevens. She could not have been more gracious when I reached out. In her daily Chicago Tribune “Balancing Act,” column, she discusses the joys and troubles of family life. I thought she could give us practical insight from dealing with some of the world’s most ruthless negotiators — kids.
Let them fight it out. Heidi believes in what we might call minimally invasive mediation. “I don’t feel like I’m doing them much of a service to jump in and solve their problems for them. So I actually allow a fair amount of bickering among my kids.” Heavy-handed mediators who expect immediately to control their parties, preach to them or try to impose their solution rarely fare well. To some extent, parties just need a safe way to fight it out. Of course Heidi has boundaries. No being cruel or mean to each other. Nothing physical, of course. No name calling. “I’ll just try to guide them toward a better, more fruitful way of getting their point across.” Good advice for mediators as well.
Digging out the real issues. If a kid is going off the tracks, Heidi doesn’t get angry or threaten. She digs in to find out what is really going on. She asks, “Like, what are you actually upset about, Sweetie? Why are you mad right now? Tell me what made you mad.” She tries to ask questions that will get them thinking, why am I so mad about this? What are they being reminded of ? Why does that feel so unfair? “Why is it the biggest deal if she grabs my Nintendo Switch and starts playing with it? Maybe it is, maybe it’s a really, really big deal, but then let’s examine why.” For mediators, dealing with litigants’ emotions is a constant challenge. Mediation can be stressful. It can recapitulate years of bitter fighting and prior dealings. It is easy to get frustrated. Without using Heidi’s loving nomenclature, mediators do need to discover what is really going on when parties are having difficulty articulating their problems. What are their real goals? What’s the
subtext? What is in the history of the litigation or even the history of a party or lawyer that is blocking resolution?
Expect morality. Trial by combat always had its limits. The court system depends on basic core values. “My goal isn’t so much to stop the fighting or stop having conflict. It’s more like, figure out a way to resolve this, you guys. You gotta be fair. You gotta be honest.” If Heidi finds someone exaggerating or fudging, she may call them out on it. Mediators try to get parties to acknowledge what must be acknowledged. Deals require compromise and compromise requires recognition of what’s true or at least what’s provable. Heidi talks about the Golden Rule with her kids. It may sound corny but it’s really spot on. As a judge, I did also. A party seeking an aggressive sanction for a minor violation might be reminded that he or she has been in the same position. Mediators have to remind parties that their opponents are usually acting in ways they themselves might under similar circumstances.
Set out the choices and hold to them. From early on, Heidi understood the importance of letting her kids make their own choices instead of directing them. “It’s so cute, when she was two, we were in a store in the Northwest, in Minnesota. I said, baby, you can pick out one thing, and I’ll buy it for you as a treat before we leave. Twenty minutes later she said, Mommy, did you say two things or three things?” After restating the offer, her daughter went with the little phone. “I just remember that being a moment of like wow! This one’s a smooth operator.” “We do best together if I’m very honest with her. We want to