Empathy in Mediation Is a Skill You Can Develop

Empathy in Mediation Is a Skill You Can Develop

Ask a room of lawyers which of them is empathetic and watch what happens. A few hands go up slowly. Most people look at the table. Underneath that is an assumption that empathy came issued at birth, and if you didn’t get any, you facilitate paperwork and hope nobody notices.

However, I disagree. I know mediators can develop empathy with training and practice.

Empathy in mediation is a skill.

Like other mediation skills, it can be developed deliberately and strengthened over time.

Feeling Into

Empathy is actually a pretty young word in the English language. It shows up around 1908, when psychologist Edward Titchener needed an English equivalent for the German Einfühlung, which means “in-feeling,” or “feeling into.” He built the English word from the Greek en, meaning “in,” and pathos, meaning “feeling” or “emotion.”

Titchener’s description describes an action. Empathy means moving your attention into another person’s experience and staying there long enough to learn something about their perspective.

John Steinbeck put it plainly: “You can only understand people if you feel them in yourself.”

An empathetic mediator gets into the world a person is experiencing to help them find a pathway to settlement.

Empathy in Mediation Starts With Your Own Reaction

The best signal that you need to work at empathy usually shows up inside you.

You’re listening to someone, and you catch yourself thinking: That makes no sense. He’s being unreasonable. I don’t believe her.

Maybe you just feel uncomfortable with what you’re hearing. This may result in you growing impatient. Your mind might even jump ahead to what you want to say next, or to how you’re going to solve the problem and move the session along.

Pay super-close attention to your own emotional cues. When I notice an emotional reaction in myself, that’s important information. I take it as a cue to be more deliberate about how I’m listening. That’s when I do a little self-inventory. I stop talking or slow down. Instead of jumping ahead, I’ll deliberately go back to asking questions and being curious.

Assume Your First Read May Be Wrong

This is where empathy becomes a skill you can work on rather than a feeling you either have or don’t.

Ask a question. Listen to the answer. Then ask another one.

There’s some Columbo in good mediation. Just when you think you have the picture, there’s value in asking one more thing.

The first answer is often superficial. Stay with the person long enough to get the rest of the story.

Say a father is fighting hard over the holiday schedule. On the surface, the dispute is about who gets Christmas morning.

Stay curious. What makes Christmas morning matter to him? What is he worried will happen? What did Christmas look like in this family before? What does he want his kids to still have?

Several questions in, you may find grief about traditions that are ending, or worry about becoming a smaller presence in his children’s lives.

The point is to be patient and keep digging. Your patience in getting the full story gets you information you were never going to get from just being satisfied with the first answer or demand. As a result, you’ve got more to work with.

That kind of curiosity is an important part of developing empathy in mediation.

Listen for What Nobody Has Said Yet

Feeling into someone’s experience takes attention beyond the words. That takes practice for professionals who may only be trained to track facts, positions, evidence, and analysis. In other words, watch for the non-verbal cues, which sometimes reveal more than the words people say.

For example, pay close attention to the tone of a person’s voice. Did their voice drop or go up? Did the timbre of the voice shift when a particular subject came up?

What about their cadence? Listen to the pace of someone’s speech. Notice when there’s a pregnant pause before an answer, and the subject the person keeps circling back to. Pay attention to the energy in the room, including your own.

Sometimes the most important thing in the conversation is what people don’t say out loud. It is so common for people’s most important motivations to stay buried under the emotion. The trick is to spot what’s hiding underneath.

For example, if someone trembles and their voice catches whenever money comes up, they may be carrying a lot of financial stress. If someone is arguing or getting upset about a parenting schedule, they might be grieving or feeling helpless about time lost with their child. A fight over the house may be about security, or about the end of a dream.

Your genuine curiosity and attention to both verbal and non-verbal expressions can give the real concerns a chance to surface.

Say What You’re Hearing

Once you have a sense of what may be going on, name it. Keep it short.

“That sounds frustrating.”

“This seems really important to you.”

“A lot is going on for you right now.”

Watch the phrasing, because you are working in front of two people. “That sounds like it was really difficult” acknowledges the experience. “You must have been so frustrated with him for doing that” acknowledges the experience and assigns blame, and the other party hears it.

A simple test: Could you offer the equivalent statement to the other side without sounding inconsistent? If not, it probably wasn’t neutral.

From there, you can reframe the need underneath the feeling.

“It sounds like there’s a lot of anxiety around this schedule. Help me understand what you need the schedule to accomplish.”

“I’m hearing how important the house has become in this conversation. What does keeping it represent for you?”

The acknowledgment gets to the underlying emotion. The reframe helps clarify the client’s need.

This combination of acknowledgment and reframing is one way a mediator can turn empathy into something useful during a mediation session.

Don’t be a mind reader!

I’ve seen plenty of mediators get caught up in mind reading. It’s not about magic. Sure, you may have some intuition about what is going on, and that is useful. But intuition always needs to be checked with facts. Rather than assuming you know what someone is thinking, form a hypothesis and test it with some genuine curiosity.

A good mediator might pick up sadness, fear, anger, or uncertainty. That gives you somewhere to look. A really good mediator then takes the next step to clarify.

So you ask and carefully listen. Assume nothing, and stay open to finding out that you might have missed something. Humility and a willingness to be corrected are a huge part of the skill of empathy.

Attention Comes First

For me, empathy starts with attention. In fact, that’s really the whole game. You pay attention with all of your senses, not just your ears. At the risk of sounding like a Jedi Master, listen with your feelings.

I love to talk, and I even enjoy hearing myself talk. (Just ask my wife!) But some of my best moments as a mediator are when I shut up and listen and really observe what’s going on with someone.

Developing empathy in mediation starts there. Pay attention to the person. Pay attention to yourself. Stay curious long enough to learn what is actually going on.

Practicing Empathy in Mediation

Skills like empathy need practice and hard work to develop.

That’s a big part of how we run our 40-Hour Divorce Mediation Training at Weber Dispute Resolution. Participants learn the concepts and then use them in exercises, mock mediations, feedback, and discussion.

Sharpen your skills at Shawn's 40-Hour Divorce Mediation Training.

Shawn’s 40-hour mediation is live on Zoom. We’ll spend 40 hours working with participants on the skills and judgment that make mediation work.

If you want mediation skills you can actually use with people in conflict, we’d be glad to have you join us.

Mediators Need Muscle Memory

Mediators Need Muscle Memory

Years ago, a client of mine was a Navy SEAL Commander. He was kind enough to permit me to bring a group of Boy Scouts I led to the Navy SEAL Training Center in Coronado.

The kids were mesmerized. He showed us where the SEALs train, and where they suffer. We went to the beach where trainees work the small inflatable boats in the cold water off Coronado. He showed the boys the bell trainees ring when they’ve had enough, and let them try a few of the obstacles on the course.

Early in the tour, he explained why they train so hard. When SEALs land in a life-or-death situation, they don’t have time to remember what they learned in a classroom. They drill the same skills over and over so they know what to do under pressure. They build muscle memory.

He made a second point that stuck with me. They study the theory too. They need to understand why they’re doing what they’re doing. Understanding and repetition together are what get them ready to respond when it counts.

I’ve thought about that lesson many times, both as a mediator and as a mediation trainer. A mediation room is nothing like a SEAL training compound. But the lesson about training translates to learning mediation skills better than you’d expect.

Professional Experience Is Not the Same as Mediation Skills

Most people come to mediation after building a career in something else.

Attorneys know the law and have years of experience negotiating cases and advising clients. Mental health professionals understand human behavior and have spent years working with people under stress. Financial professionals understand money and can walk people through complicated decisions.

That experience is valuable. It is not the same thing as mediation skill. Mediation is its own craft, and it has to be learned separately.

A lawyer who has spent twenty years representing clients has built strong instincts. Those instincts served the lawyer well in that role. Some of them get in the way when the job changes from arguing for one side to helping two people work out their own resolution. The same holds for therapists and financial professionals sitting in the mediator’s chair. Each has to learn a different role.

Professional experience gives you something to build on. Mediation skills training teaches you how to use that experience differently.

Mediation Skills Require Theory and Practice

Theory is part of that training. A mediator should be able to say why a particular intervention fits a particular moment: why ask this question, why reframe that statement, why sit quietly and let an uncomfortable silence do its work. Theory gives us a framework for reading the room and making deliberate choices instead of reflexive ones.

But knowing what to do and doing it while two people are falling apart in front of you are two different skills. I’ve watched this play out. I know mediators who understand the theory cold. They’ve taken the trainings, read the books, and can talk you through any model you name.

Several of them are mediocre in the room.

They have never built enough practical mediation skills to use what they know without thinking about it first. You can understand exactly why a reframe is called for and still stumble over saying it. You can recognize the moment and get so focused on phrasing the perfect response that you stop listening to what’s actually happening.

I see this with new mediators all the time. They cling to the script because they are still trying to remember the process. They rush to fill a silence because sitting in it feels uncomfortable. Sometimes they become so focused on doing mediation correctly that they lose track of the people they are supposed to be helping.

Practice gives them enough familiarity with the process to loosen their grip on it.

That gap between knowing and doing is real, and it’s where a lot of mediators get stuck. Theory gives the work its intellectual framework. Practice is what lets you use it.

How to Improve Your Mediation Skills

New mediators are carrying a lot in their heads at once: what comes next, what to say, how to track two people in active conflict at the same time. That’s a lot to hold.

Practice is what starts to clear some of it. You run a mock mediation. Something unexpected happens. You make a call and see what it does. Then you run it again.

There are plenty of ways to practice mediation skills outside a formal training. Role-play with other mediators. Record a mock mediation and watch yourself afterward. Watching yourself mediate on video can be painful, but it is remarkably useful. You start noticing habits you had no idea you had.

Eventually the basic structure gets familiar enough that you stop spending most of your attention remembering what a mediator is supposed to do next. That frees you up to actually watch the people in front of you: listen more closely, notice things you’d have missed before, and decide what the moment actually calls for.

Muscle memory works together with knowledge and theory. The goal is to make the basic moves familiar enough that they’re there when you need them, so your judgment and your grasp of the theory can pick the right tool instead of scrambling to find one.

You know this is starting to happen when you spend less time planning your next move and more time listening. You begin responding to what is actually happening instead of trying to remember what you are supposed to do. The work starts to feel more natural.

Developing Mediation Skills Through Mock Mediation

That’s why we do so many mock mediations in our 40-Hour Divorce Mediation Training. I want people to experience what happens when a mediation takes an unexpected turn. What do you do now?

Sometimes it works. Sometimes it doesn’t. Either way, we talk about what happened and why. The feedback comes from the instructors and from the other people in the training. Then we give it another shot.

That repetition is where the learning starts to stick.

The lesson from that day at the SEAL training center has stayed with me. People train hard for the moments when their skills will be tested.

Mediators should too.

We need to understand why we are doing what we are doing. Then we need to practice it enough that when the room gets difficult, we can actually do it.

Ready to Build Your Mediation Skills?

Our 40-Hour Divorce Mediation Training combines theory with extensive hands-on practice, including mock mediations designed to help you develop the skills you need in the room.

Don’t Panic: How to Stay Calm During Divorce Mediation by Trusting the Process

Don’t Panic: How to Stay Calm During Divorce Mediation by Trusting the Process

Fans of The Hitchhiker’s Guide to the Galaxy know that the guide offers one essential piece of advice in large, friendly letters: Don’t Panic. This is especially important when you’re wondering how to stay calm during divorce mediation.

It is good advice for travelers unexpectedly launched into the chaos of the universe. It is also good advice for people beginning a divorce or other family law dispute.

The first days of separation can feel disorienting. A text message arrives. An email appears. A difficult conversation goes badly. Suddenly, every issue feels urgent, and every decision feels permanent.

That is when people are most vulnerable to making poor choices.

Fear creates urgency. Urgency creates mistakes.

At Weber Dispute Resolution, clients often hear a simple reminder: slower is faster.

When people slow down enough to gather information, ask better questions, and think clearly, they often move the case forward more efficiently and with fewer expensive detours.

One of the greatest strengths of mediation and Collaborative Practice is that they create a process. A good process helps people slow down, gather information, ask better questions, and make decisions from a place of greater stability.

The goal is not to pretend fear is unreasonable. Instead, it’s to keep fear from making the decisions and allow space for a clear, defined path forward.

Panic Makes Everything Feel Immediate

Conflict changes the way people think.

When a person feels threatened, the brain starts scanning for danger. It fills in gaps with assumptions. It treats uncertainty as proof that something terrible is about to happen.

That is why one unanswered question can quickly become a frightening story.

Will I lose time with my children? Will I be financially secure? Will my spouse be reasonable?

These are normal questions. They deserve serious attention. They do not need to be answered in the middle of an emotional surge.

In mediation and Collaborative Practice, people are not expected to solve every issue at once. The process breaks large problems into manageable parts. Parenting, support, property, budgets, and disclosures can be addressed in an organized way.

That structure matters because it gives people room to breathe and paves the way for more thoughtful conflict resolution.

Trusting the Process Does Not Mean Giving Up Control

Some people hear the phrase “trust the process” and worry that it means becoming passive.

It does not.

In mediation and Collaborative Practice, clients remain active participants. They ask questions. They gather documents. They consult with professionals. They consider options. They make decisions.

Trusting the process means understanding that good decisions usually require good information.

A person does not need to know every answer at the beginning of the case. Most people cannot. What they need is a reliable way to move from confusion to clarity.

That is what a sound process is designed to provide.  It moves clients from confusion toward practical decisions, as the next section will explore.

A Good Process Leads to Better Decisions

Divorce involves legal issues, financial realities, emotional stress, and family relationships. Those issues are often tangled together.

When people panic, they usually focus on one part of the problem and lose sight of the larger picture.

A parent may become so focused on one holiday that the larger parenting plan gets lost. A spouse may become so worried about one account that the full financial picture becomes harder to see. A person may react to one angry message as though it defines the entire future.

A good process creates space between the immediate emotion and the long-term decisions. That space leads to better judgment.

The River May Be Rough, and the Boat Can Still Be Fine

Divorce mediation is sometimes like whitewater rafting.

People do not hire a guide because the river is calm. They hire a guide because the guide understands the rapids.

The guide cannot remove every rock from the river. The guide cannot promise that nobody will get wet. The guide can read the current, anticipate hazards, and help people navigate rough water without making the ride more dangerous than it needs to be.

Mediation works in a similar way.

There may be difficult conversations. There may be emotional moments. There may be proposals that are rejected before better ones are developed.

That does not mean the process is failing.

Conflict often rises before it resolves. Experienced mediators expect that. They know how to help people stay engaged when the conversation becomes uncomfortable.

A hard meeting is not the same thing as a failed meeting. Sometimes it is the meeting where the real work begins.

Do Not Panic Because Your Spouse Hired an Attorney

Many people become alarmed when the other spouse hires an attorney.

That reaction is understandable. It can feel like the case has suddenly become adversarial.

In many cases, legal advice can actually support mediation. Clients often make better decisions when they understand their rights and responsibilities.  Additionally, when clients have a clear understanding of all of their options, including ideas outside the box, the decision making is usually much better. Consulting counsel can help a person prepare, evaluate proposals, and avoid agreements that were not fully understood.

The presence of an attorney does not automatically mean the process is over. It may mean the process has more support.

Do Not Panic Because You Do Not Have All the Answers

Most clients begin mediation with incomplete information. This lack of information can make it very hard to know how to remain calm during divorce mediation.

That is normal.

They may not know the house’s value. They may not understand retirement accounts. They may be unsure about support. They may not know what parenting schedule will work best once everyone is living in separate homes.

The early stage of mediation is often about identifying what still needs to be learned.

Questions are not a sign of failure. Questions are part of the way ahead.

Do Not Panic Because Settlement Takes Time

Some cases settle quickly. Others require patience.

That does not mean anyone is doing it wrong.

People need time to absorb information. They need time to think. They need time to test options. They need time to move from emotional reaction to practical decision-making.

Speed is not the only measure of success.

A rushed agreement can create new conflict later. A thoughtful agreement is more likely to last.

The purpose of mediation is to help people reach an informed agreement they can actually live with.

Knowing How to Stay Calm During Divorce Mediation Is a Skill

Even though it may not feel natural, keeping calm is a skill folks can learn and practice.

People practice it when they pause before responding, ask questions instead of making assumptions, and wait for information before reaching conclusions.

They also practice it by remembering that the process has a sequence.

First, identify the issues. Next, gather the information. Then, develop options. After that, evaluate choices. Then make decisions.

When people try to do all of that at once, panic takes over. When they follow the process, clarity has a chance to emerge.

You Only Need the Next Thoughtful Step

When thinking about how to stay calm during divorce mediation, people can sometimes feel as though they must solve the rest of their lives immediately.

They do not.

They need the next thoughtful step.

That step may be compiling documents. It may be scheduling a meeting. It may be consulting with an attorney. It may be preparing a budget. It may be taking a break before responding to a difficult message.

People will move forward in their cases most effectively if they take one small, thoughtful step at a time. Panicky people will often rush past the information-gathering stage and demand certainty before they understand the facts. A careful process helps folks reach clarity more reliably and more efficiently.

The Guide Was Right

There is no magic button that makes divorce easy. There is no perfect script for every hard conversation. There is no way to remove all uncertainty from a major life transition. Knowing how to stay calm during divorce mediation can sometimes be plain tough.

There is, however, a way to move through conflict with structure, support, and greater steadiness.

That is why mediation and Collaborative Practice can be so valuable. They help people make decisions without letting fear make those decisions for them.

You do not need a towel to get through mediation.

You do need patience, good information, and a process you can trust.

The Hitchhiker’s Guide got one thing exactly right:

Don’t panic.

What Is a Gavron Warning? What California Divorcing Spouses Need to Know

What Is a Gavron Warning? What California Divorcing Spouses Need to Know

If you are going through a divorce in California and spousal support is on the table, you should understand what a Gavron warning is. Whether you expect to pay support or receive it, this concept affects how long support lasts and what the court expects from each party.

Where the Gavron Warning Comes From

The term comes from a 1988 California appellate case, In re Marriage of Gavron (203 Cal.App.3d 705). The facts were straightforward. The couple separated in 1976 after a 25-year marriage. The court ordered the husband to pay $1,100 per month in spousal support. Five years later, he asked the court to reduce support and eventually terminate it. That request was denied.

He tried again in 1986. This time the trial court ordered support to continue for five more months and then end. The wife appealed, and the appellate court reversed. The reasoning: because no prior order had told the wife she was expected to become self-supporting, the court could not penalize her for failing to do so. She had never been put on notice.

That case created the rule. If the court wants to hold a supported spouse accountable for becoming self-sufficient, it first has to tell them that is the expectation.

What the Law Says Now

The Gavron decision has been codified in California Family Code Section 4330(b). The current language reads:

“When making an order for spousal support, the court may advise the recipient of support that the recipient should make reasonable efforts to assist in providing for their support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable.”

Two things to notice in that language. First, the statute says the court “may advise,” not “must advise.” The Gavron warning is discretionary. The court does not have to include it. Second, the statute specifically recognizes that in long-duration marriages (generally ten years or more), the court may decide the warning is not appropriate at all. An older spouse who left the workforce decades ago may not realistically be expected to become self-supporting. (That said, in 25 years of practice, I have never seen a court decline to give a Gavron warning when requested.)

What the Gavron Warning Means in Practice

For the spouse paying support, the Gavron warning creates a foundation for a future request to reduce or end support. If the warning is in the order and the supported spouse does not make reasonable efforts toward self-sufficiency, the paying spouse can later go back to court and point to that failure as grounds for modification.

Without the warning in the order, that argument is harder to make. The Gavron case itself established that principle.

For the spouse receiving support, the warning is notice that the court expects action. That does not mean support ends immediately. It means the supported spouse should be taking steps toward financial independence, whether through employment, education, training, or other efforts appropriate to their circumstances.

What counts as “reasonable efforts” depends on the facts of the case. A spouse with a professional degree and recent work history is in a different position than a spouse who has been out of the workforce for twenty years with no college education. Courts evaluate this on a case-by-case basis.

How This Comes Up in Mediation

In mediation, the Gavron warning is a topic both spouses should understand before they finalize a support agreement. The mediator does not advocate for either side, but the mediator can make sure both parties know what the warning is, how it works, and what the implications are of including or excluding it from a stipulated agreement.

In my practice, I raise the Gavron warning as part of the spousal support conversation so that both spouses can make informed decisions. If the parties agree to include Gavron language in their settlement agreement, the supported spouse knows what is expected. If they agree to exclude it, the paying spouse understands the tradeoff.

I also frequently refer supported spouses to vocational counseling. A vocational evaluation can assess earning capacity and help develop a realistic plan for re-entering the workforce. This serves both parties. The supported spouse gets a concrete path forward. The paying spouse gets confidence that support is being used for its intended purpose.

A Practical Note for Both Spouses

Regardless of which side of the support equation you are on, do not treat spousal support as permanent income. Support can be modified or terminated based on changed circumstances: job loss, disability, retirement, remarriage, or death of either party. A Gavron warning adds another basis for modification, but circumstances can shift regardless.

The supported spouse should document efforts toward self-sufficiency. The paying spouse should ensure the support order addresses the Gavron warning clearly.

And both spouses should consult with their own attorneys during the mediation process. A mediator works for the process, not for either party. Individual legal advice ensures that each spouse understands their rights and the consequences of the decisions they are making.

Five Questions to Ask Before You Hire a Divorce Mediator

Five Questions to Ask Before You Hire a Divorce Mediator

[This article was originally posted in 2016. It has been revised and republished on 5/13/2026.]

Choosing a mediator matters. The person you hire will sit in the middle of one of the most consequential negotiations of your life. A good mediator keeps the process moving, helps you make informed decisions, and gets you to an agreement that holds up. For best results, consider the questions to ask a divorce mediator before making your choice. A mediator who lacks training or experience can cost you time, money, and a durable outcome.

California has no licensure requirements for mediators. Anyone can hang a shingle. That makes it your job to ask the right questions before you commit. One important step is to have a list of questions to ask a divorce mediator in advance.

Here are five worth asking. These are some of the key questions to ask a divorce mediator in order to ensure a good fit for your situation.

1. What training have you completed, and how recently?

Mediation requires a specific set of skills. Listening, reframing, managing impasse, drafting workable agreements. These are learned skills, and they need to be maintained.

Ask how many hours of mediation training the person has completed. Ask when they last took a course. A mediator who completed a 40-hour training fifteen years ago and has done nothing since is working with outdated tools. Look for someone who invests in ongoing education.

2. What are your professional credentials outside of mediation?

Most mediators come from a professional background in law, mental health, or finance. That background matters because it shapes what they bring to the table.

A mediator with a law license can draft settlement agreements with an understanding of how courts will read them. A mediator with a mental health background brings skill in managing high-emotion conversations. A financial professional adds value when the case involves complex assets or support calculations.

Ask what credentials they hold and whether those licenses are current. If someone carries a professional license, verify that it is active. If they have no underlying credential at all, ask what qualifies them to handle your case.

3. How much of your practice is mediation?

Some mediators do this work full time. Others mediate occasionally alongside a litigation practice or a therapy practice.

Volume matters. A mediator who handles cases regularly has seen more situations, developed more tools, and refined their process through repetition. Ask how many cases they handle per month and how long they have been mediating. Experience in the chair builds judgment that training alone cannot provide. You can also use these opportunities to bring up any additional questions to ask a divorce mediator.

4. What does your process look like, and how long does it typically take?

A thorough divorce mediation takes time. If someone promises to resolve everything in a single session, be cautious. Marriages involve finances, property, support, and often children. Unwinding all of that properly requires multiple sessions, proper disclosure, and time to think between meetings.

Ask the mediator to walk you through their typical process. How many sessions should you expect? What happens between sessions? How do they handle financial disclosure? What does the final agreement look like?

A mediator who can describe a clear, structured process has thought about how to get you from the first meeting to a signed agreement. That structure is what keeps things on track when the conversations get difficult.

5. How do you handle conflict in the room?

Every mediator has a style. Some are more facilitative, meaning they focus on helping you and your spouse communicate and reach your own decisions. Others are more evaluative, meaning they offer opinions on likely court outcomes or the strengths of each position.

Ask the mediator to describe their approach. Ask how they handle it when one party gets stuck or when emotions run high. The answer will tell you a lot about whether this person can manage the reality of your situation.

Even when your mediator is a licensed attorney, the mediator works for the process, not for either party. A mediator cannot give you individual legal advice. During mediation, consult with your own attorney to make sure you understand your rights and that the decisions you are making are informed ones.

Choosing the right mediator is worth the effort. Take the time to ask these questions before your first session.