How “Touchy-Feely” Mediation Works – An Actual Case Study By Mark B. Baer, Esq.

I recently had an email exchange with some mediation clients of mine that demonstrates the power of what I refer to as “true mediation” and wanted to share it, to give people a better understanding of the process. The exchange went as follows:

“Dear **** and ****:

Please stop this. From reading these emails, it is clear to me that you are both acting out over things that are far and beyond the manner in which the finances were handled with regard to my mediation fees. Let me shed some light on this from my perspective. At our last session, the two of you agreed that [Husband] would pay for 2/3 of my mediation fees and [Wife] would pay for 1/3 of those fees. Since [Wife] did not have a checkbook with her, [Husband] agreed to pay for the entire session and [Wife] agreed to reimburse him. However, we never discussed how [Wife] would reimburse [Husband]. Since people typically think of reimbursement as being a direct payment to them, [Husband] assumed that [Wife] would pay him $600.00 directly. Instead, [Wife] decided to pay me $1,000.00, which amounted to $600.00 for her share of that cost and $400.00 as her anticipated share of the upcoming 3 hour session that is scheduled to take place next week. I promise that I would not have accepted [Wife’s] payment, if I thought for a moment that it would have created a problem and for that I must apologize.

With regard to the issue of the accounting regarding fees paid to me, my invoices to you both will reflect who paid what and therefore it will be very easy for you to determine whether anyone needs to be reimbursed for paying proportionately more. Since I know how I maintain my billing, I assumed that my accounting would be sufficient. Again, please forgive me because had I not taken the payment, you would not be having this particular argument.

Now, let’s discuss what is going on here. First of all, [Husband] had an expectation as to how the reimbursement was to take place and it was unexpressed. As a result, when that expectation was not met, he got upset. I want to now quote Brene’ Brown, Ph.D. because her work is amazing ( “Blame is about discharging pain and anger. Accountability is about understanding how vulnerable we feel, expressing that and asking for what we need. We tend to make people guess what we need and then blame them for not delivering.” Isn’t that exactly what occurred here? Remember we talked about trust and forgiveness? If you recall, we talked about the importance of learning from prior experiences and forgiving? Please read the following article I wrote because it covers much of this information: To be quite frank, I get charged a substantial fee for taking a credit card payment over the phone, especially if that credit card is American Express. By the time I take that fee into account, I am not making my agreed upon hourly rate. Would I have preferred being paid otherwise? Yes. Did this impact my financial situation? Yes. However, I do accept credit cards and the fee was paid in this manner. At this point, the fee was incurred, even if I were to reimburse it to [Wife]. Therefore, I just don’t see what good will come from arguing over this issue because the only person it financially impacted was me and there are many ways of doing the accounting.

Do you remember the three words you each came up with that describe your respective core values? When you are communicating with each other, are you doing so in a manner that satisfies those three words? Do you remember your “mission statements” as to why you each wanted to mediate your divorce? Do you really want to risk derailing the mediation over this?

Earlier, I mentioned that there is something else going on here. I think that [Husband] made that clear when he stated, “OK. Please also be cognizant of your mass emails to our mutual friends and family that I was not privy to, that painted me as abusive, etc. Pot=Kettle+Black.” If this did occur, it “shamed” [Husband] and shaming someone is very destructive. In fact, that is Dr. Brown’s specialty. She studies vulnerability, courage, worthiness, and shame at the University of Houston. I might suggest that you each consider purchasing her two books and reading them. I learned a great deal from her and quote her extensively. You can get some understanding about this issue from the article I linked to earlier in this email. However, you might also learn something from the following article:

[Husband’s] feelings have clearly been hurt as a result of certain things that were said and done and he is sharing that with us. Only [Husband] knows how he feels and it is important that we respect his feelings. You also both have very different stories of what occurred. Guess what? We all do. We all live in our own realities based upon our perceptions of things.

I would also strongly suggest that you read the following article about the “blame game” because you are playing that game regarding the “cause” of this divorce: This may not be [Husband’s] first divorce, but [Wife] entered into this marriage with complete knowledge of that fact. It would be different if [Wife] entered into this marriage without such knowledge.

If this exchange is an attempt to get me to “side” with one of you, it won’t happen because I am a professional and my role in this case is as the neutral mediator. Moreover, I am not making any of the decisions – I am merely facilitating settlement between the two of you.”

Husband responded as follows: “Mark- Thank you for this perspective. [Wife] – I’m sorry I was triggered by this and it took a negative turn.”

Wife responded as follows: “Mark, thank you for your big picture reminders. I chose to work with you precisely because you side with the child and no one else. That’s important.

I think for all the obvious reasons, mediation is very important. However, we need to discuss how ground rules must be observed. Taking ten steps to go one step forward is not progress and further erodes trust.

We also need timelines because [Husband] has not yet sent us the notes from our last mediation session and it was his turn to do so.

Anyhow, thanks for your guidance.”


  1. paul rajkowski says:

    Touchy-feely is always part of mediation, family or civil. The legally trained come to mediation with facts, rights, and entitlements as their approach, unless they have an epiphany. :-)) Family usually has children and civil has unmet expectation. For me, Dr. Brown’s knowledge is very useful……..

  2. Very true, Paul. Since I am aware that some attorneys describe my approach to their clients as “touchy-feely,” I thought that I should describe what that means.

  3. Thank you for your article. I found this interesting.

    -Michael C. Craven, Chicago Divorce Attorney

  4. You are most welcome, Michael. Thank you.