When someone disagrees with you, are you listening to understand—or getting ready to explain why you’re right?
David Fein’s work depends on that distinction. An energy lawyer and certified divorce and family law mediator, David spends his days with people whose interests don’t neatly line up. Finding a way forward takes curiosity, careful listening, and more creativity than you might expect from a legal career.
David joins me to talk about an unexpected professional pivot, the challenge of helping people find their own answers, and the communication skills we tend to assume everyone already knows. You don’t have to be negotiating legislation or navigating a divorce to recognize yourself in this conversation.
In this episode, we discuss:
- An Unexpected Creative Career: David didn’t think of himself as a creative kid. Where did creativity turn up in a profession he hadn’t associated with it?
- Finding Common Ground: What connects energy negotiations with divorce mediation—and what changes when the stakes become deeply personal?
- Are We Actually Listening? What gets missed when we’re preparing our next question, offering a solution, or mentally making the grocery list?
Chapters:
0:00 – Introducing David Fein
3:41 – Discovering creativity in a legal career
10:30 – Energy law, changing technology, and competing interests
20:34 – An unexpected move into divorce mediation
29:07 – What makes people willing to work together?
36:15 – Helping people find their own answers
46:48 – Learning to listen beyond your next question
52:27 – Communication skills we’re never taught
I’m Nancy Norbeck, your Messy Muse Mentor, creativity expert, and creator of the Restorative Creativity Framework™. I specialize in using creativity to reconnect people with themselves, so you can make room for things that interest and delight you and feel like you’re actually alive again.
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Show Links: David Fein
David’s website
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Transcript: David Fein
Please note: This is an unedited transcript, provided as a courtesy, and reflects the actual conversation as closely as possible. Please forgive any typographical or grammatical errors.
Nancy Norbeck [00:00:06]:
Welcome to Follow Your Curiosity. You didn’t lose your creative spark. You were taught to leave it behind. I’m creativity expert Nancy Norbeck, and I’m here to help you get it back. Let’s go. My guest today is David Fein, a certified divorce and family law mediator who helps spouses and families navigate the complexities of divorce through a collaborative and respectful process. David began his work in energy law and now uses an empowering, empathetic, and holistic framework designed to facilitate constructive dialogue and mutual understanding. I invited David to join me to tell us about how his legal work has always sought to find common ground among diverging viewpoints, both in the energy sector and now in family law.
Nancy Norbeck [00:00:52]:
He tells me how he made the decision to move into divorce mediation, about creative coalition building in both fields, and about the importance of active listening in mediation and as an everyday communication skill, and a lot more. Here’s my conversation with David Fein. David, welcome to Follow Your Curiosity.
David Fein [00:01:13]:
Thank you, Nancy. Great to be here.
Nancy Norbeck [00:01:16]:
So I start everybody with the same question. Were you a creative kid, or did you discover your creative side later on?
David Fein [00:01:23]:
Much later on.
Nancy Norbeck [00:01:24]:
Really?
David Fein [00:01:25]:
Yeah. Definitely not a creative kid.
Nancy Norbeck [00:01:28]:
So what was, what was your childhood like then? Cause that’s an unusual answer for folks who come on this show.
David Fein [00:01:37]:
You know, I can’t snap my fingers. I can’t whistle. Was not a good drawer, was not a musician. I did not have a lot of creative, strengths as a kid. That’s for sure. If you ask my teachers back then, I think they would echo that. I think if you ask my parents that, they would probably echo that. I think I was, much more, you know, reserved conservative, you know, sort of, with my creativity.
David Fein [00:02:11]:
And I don’t think I, I blossomed into that until my adult life and in professional career.
Nancy Norbeck [00:02:18]:
Interesting. And I, I just have to say, because I don’t think I have ever met anyone else like this before. I have never been able to snap my fingers. Never.
David Fein [00:02:30]:
Really?
Nancy Norbeck [00:02:30]:
Can you now? Yeah. Me neither. And if
David Fein [00:02:35]:
I do try it, I do it with the wrong finger. I don’t even do it with the right finger because it feels even less uncomfortable with the wrong figure. So no, I have not picked that up, and cannot whistle or snap my fingers.
Nancy Norbeck [00:02:51]:
It can whistle, but I can’t snap my fingers. And I remember sitting in music classes in elementary school, just faking it for all I was worth going. How do you do this? I don’t understand.
David Fein [00:03:02]:
I can play air guitar and air drums the best of them. And, you know, I can lip sync songs, but, being able to make music with my fingers or whistling is not a skill set. I have accomplished, in the 58 I’ve been on this planet.
Nancy Norbeck [00:03:19]:
Well, in in fifty four, I’ve… This is the first time I have met someone else who also cannot snap their fingers. I I feel so much less alone now.
David Fein [00:03:28]:
Good. I’m glad. I’m glad I could help you.
Nancy Norbeck [00:03:31]:
It’s such a silly thing, but then here we are. So, so how is it that you did discover that you had a creative side?
David Fein [00:03:41]:
I think, really with, with trying to market myself, when I started as a young lawyer. You know, I went to law school thinking I wanted to put bad guys in jail. I came out of law school with a somewhat of a early specialization in energy and public utility law. And it was not an area that there was a class in law school on. It was a a job I was, fortunate enough to find my way into. And, when I started to have to market myself and my skills and what I could do, I found, I think my creative side in a way that I hadn’t really tapped it, in any way, shape or form throughout my first, you know, twenty one, twenty two years on, on this era. I think it forced me to, really learn it and really get comfortable with it. And of course it’s not something that that happens overnight.
David Fein [00:04:49]:
It’s something that takes practice and trial and error. And I think with that was, I guess I’d put it in the same boat of creative side is, is public speaking and getting comfortable with being able to talk in public, to being, being able to argue, before a judge or, an appellate panel or before a legislative body or to engage an immediate interview or something like that. And those are things that, I started, you know, at the beginning of my career and started doing more of that over time. And of course you find that you get more and more comfortable each time you do it. You, can think on your feet. You can, adapt to the situations. And, you know, for me, I, you know, I, I don’t think the legal profession has a lot of creativity in it. Really.
David Fein [00:05:49]:
There’s innovation, which is a little bit different, but I think in order to differentiate yourself, like I always have to be creative. I have to be trying to do something different and you know, why me as opposed to so many other people that that people could go see for, legal work. So, the creativity aspect, I I I do hold, dear heart. I think I can still learn and be more creative every day. And, you know, I strive to do that in my practice and how I carry myself.
Nancy Norbeck [00:06:22]:
I do think it’s interesting that you said that, you know, you wanted to to… How did you phrase it? You you wanted to put bad guys away, I think is what you said. And there’s obviously a creative image in there. You know, there’s there’s imagination behind that. So you definitely had some kind of creativity going on there even that got you to to law school.
David Fein [00:06:43]:
Yeah, maybe. I mean, I, I come from a long family of lawyers, and some joke that, well, it looks like your path was already decided for you, David. But no, it was something I chose for myself. And the reason I wanted to put bad guys in jail is, like, because I had the opportunity to work when I was in, high school and college, for, in honor of the local state’s attorney’s office, And I was working with victims and witnesses of violent crime. And, seeing what had been done to these families, and the devastation and, you know, the loss and the grief, and the lack of, you know, making sense of it all, sort of drove me to do that. But I, you know, after after actually having the opportunity in law school to to work, with the prosecutor’s office. You know, I, I, I enjoyed doing it, but I ended up doing something totally different by the time I got out of school.
Nancy Norbeck [00:07:51]:
So you went into energy law, which is an interesting thing that we don’t hear very much about.
David Fein [00:08:01]:
Well, we certainly hear about it more than when I started. Yeah. You know, the the the advent of technology, and the desire to, maybe clean up the environment and to, alter the mix of resources we use for our electricity needs. Whether that be tapping wind or solar or putting batteries, you know, on our houses and electric vehicles and electric charging. And it’s a lot more interesting now than it was when I started in the early nineties in this area. And but it was, you know, something that, in my neck of the woods here in the Chicago area, you know, it was a pretty close knit group of lawyers who did this work. And so as sort of a new kid on the block, it it… You know, you took a while to sorta get ingrained in it, but all of a sudden, I had knowledge of a very finite area of law that that…
David Fein [00:09:09]:
Not that many people, you know, in in total were involved in. So from that aspect, it was really exciting. And the other aspect is, you know, we all had clients. Right? We all had to advocate, for our clients’ best interests. But one of the things I loved about it was the collegial nature of it. You know, you could go out for a beverage with someone afterwards. They could be social friends of yours and people generally are really nice and welcoming, in that area. And, you know, a lot of the relation professional relationships I still maintain today are those that I fostered, you know, in those early years.
David Fein [00:09:50]:
And it’s it’s it’s great to continue to collaborate with people like that. And, it… It’s… It is now a much more interesting and really creative area of the law that has so many divergent interests now much more than there used to be before. And that makes it challenging and it also makes it exciting. You know, there’s new, alliances and coalitions that are coming together. And so from that aspect, the creativity nature of it and the collegial nature of it, makes an exciting industry. And I still spend probably half of my professional time still working in the energy sector.
Nancy Norbeck [00:10:30]:
Can you give us an idea of, like, what kind of cases would fall under energy law back then and now?
David Fein [00:10:39]:
Yeah. Back then. So, and, and still today, your electric company wants to raise your rates. So they have to go before a body and justify whatever that, rate increase is going to be. And it’s, typically done in what they call administrative hearings. They’re hearings before administrative law judge, where you put on evidence and you cross examine witnesses and you write legal briefs and so forth. And that’s probably the simplest example I can think of. And that’s what most of the cases were about back in the day.
David Fein [00:11:17]:
Well, the industry has evolved so much. Now we have retail competition in a number of states in the country where someone other than your local utility can provide the commodity of electricity or natural gas, but they’re still delivered over the poles or the wires or the pipes of your local distribution company. Now you have incentives for wind and solar batteries, and, you have all sorts of different programs that are available to customers. And so, all of those programs, all of those rules of the game are still overseen by regulatory bodies. So, I still, represent clients in those types of matters before state regulatory agencies. In my state, it’s called the Illinois Commerce Commission. Every state calls it something a little bit different. But even though it’s, more of a, a more competitive industry, there’s still a great deal of regulation and oversight that’s done
Nancy Norbeck [00:12:25]:
by state government. Interesting. And so you mentioned that it’s much more creative now than it used to be. What does that look like?
David Fein [00:12:35]:
Well, I think just the policies are it’s it’s it used to be so rigid and now, you know, there’s lots of shades of gray. So, maybe there’s an overarching policy that the state legislature has set forth and then they, sort of hand off the implementation details, to the state regulatory agency. Well, that’s an opportunity for you as the lawyer to get creative on why this position or or this, condition or this, checkpoint in this policy is appropriate based upon the overall policy that the state has set. So there’s a lot of room for interpretation. And, and, and that’s the, to me, that’s the creative idea or the creative solutions that come up, both, before the regulatory agency. And then when there are problems identified, right. How creative your solutions can be. Can they be addressed by the regulatory agency? Do you have to go back to the, to the legislature and ask for a legislative change? And so your creativity and finding solutions, I think is, is really, really key.
David Fein [00:13:58]:
And, and being able to obviously convince others that your creative solution is one that makes sense. So, it was hard to be creative in the, in sort of the old regime where it was much more rigid and there was less room for interpretation about various items that affected your electric rates or gas rates.
Nancy Norbeck [00:14:22]:
Well, and I’m wondering too, you know, we’re hearing and, you know, I’m in New Jersey and we have definitely been hearing about rising electric rates and the connection with data centers and all of that. And and I’m I’m guessing that that’s something that you’re hearing about and maybe involved in these days too. That’s changing a lot.
David Fein [00:14:43]:
Yeah. The the data center, phenomenon, if you will. Keep in mind, and this is this is no different here in Illinois than than New Jersey, same issues. But the electric industry and the growth in the electric industry was largely flat for almost a twenty year period. You know, from 2008 recession, we haven’t had much growth in what they call load growth. The amount of electricity that’s used on the system at all. It was generally flat until the last couple of years. Well, what’s been the, what does that attribute to? A lot of things.
David Fein [00:15:28]:
A lot of manufacturing went away during that recession, a lot of manufacturing went overseas or Mexico or Canada, you know, efficiencies, that people found in their production, you know, manufacturing facilities that went from three to maybe two shifts, and then energy efficiency measures, ways to be more efficient about the energy that you use, kinda kept load growth flat. Then these data centers, which are, you know, powering the AI revolution and, and technology, really took hold in a big way. And it was, it almost, it feels like it happened overnight. Right? It feels like one of these whipsaw things that happened overnight. And I would say there is a wealth of information, data and reports out there on, you know, this, my personal opinion is that the data centers themselves are being maybe wrongly accused of being the bad guy in all of this. I think if you look at the facts regarding increases in electricity, and there are a number of studies out there that also show that rising delivery or distribution rates from the wire side of the business, not the commodity of electricity is driving a lot of the increases around the country. So, you know, all, all stories need a villain and a, and a good guy. And I feel like the data center industry itself has been made the villain in this.
David Fein [00:17:18]:
When they’ve been, you know, playing by the rules that are in place for connecting to the system. I mean, they’re not doing anything wrong. They’re playing within the rules that we’ve had, you know, for hundreds of years. So, I feel that that that gets glossed over too much in the sound bite world that we live in. And then, you know, when you look at the facts, it’s, you know, it, it’s not that simple. There there’s other factors at play. But, you know, here we are in the court of public opinion and sometimes, you know, all the facts can get lost.
Nancy Norbeck [00:17:59]:
Fair enough. I mean, I think, you know, we could probably have a separate conversation about the environmental impact of the data center versus the data center impact on your electricity cost. But for the purposes of this conversation, we don’t wanna go down that rabbit hole today. But I I do think it’s it’s an interesting thing that, you know, I… Because I don’t I don’t think much about how much power we use as, you know, as a a human race. But but it’s interesting to think that it didn’t change, you know, for that long and… Or that it went down. I mean, that that seems to me like a success story from an environmental point of view, you know, all of the campaigns to, you know, check the energy star guide and everything when you buy an appliance and stuff like that.
Nancy Norbeck [00:18:46]:
That that seems like a big success story. And so I, I can’t argue with that part.
David Fein [00:18:53]:
Yeah, no, that was a very positive influence in energy efficiency. Right. That was good for the environment. That’s the cheapest electron is the one you don’t use. Power plants are expensive to build and if people are going to build them, they need to be compensated for it. And with the cost of labor, cost of materials up from where it used to be? I mean, all of those costs are rising. And so, the demand, needs to be met and the utilities have a statutory obligation to meet the demand that the customers and their service territory, have. So they’re under the obligation to do whatever they need to do to meet that.
David Fein [00:19:39]:
So it’s… It is one of these chicken and egg things and rock and a hard place things. And, it’s it’s it’s a tough policy decision. You’re seeing… I mean, the White House is involved in this discussion, federal agencies, the regional transmission organizations, and and, obviously, the state state, regulatory agencies and state legislators. Right. Because this is a pocketbook issue. And that’s what gets consumers, you know, open arms is when something hits them in the pocketbook.
David Fein [00:20:09]:
It’s pretty simple in that regard. And, and, and energy rates have always been fodder for political, political noise, that’s been going on, for years and years and years. So nothing in there.
Nancy Norbeck [00:20:26]:
Definitely not. Definitely not. Easy target to get everybody riled up as you say.
David Fein [00:20:31]:
Easy is fine. Easy. Yeah. Mhmm.
Nancy Norbeck [00:20:34]:
But you mentioned that this is only part of what you do now. So Absolutely. Do decide to pivot and tell us about the interesting choice you made.
David Fein [00:20:45]:
Yeah. So, about three and a half years ago, I was in one of those proverbial, what are you gonna do next career, settings. And, I was provided with the opportunity to join an existing divorce mediation practice, where I would become a divorce mediator. I would be acting as a… What they call a third party neutral who just happened to be a lawyer. And it was something, of course, I never… When I think back to what we we began talking about as early in my career, you know, if you asked me the 10 areas of law that I saw myself getting into and someone said family law, I would have said no way, you know, that would be number 11 out of there. And so, that, was never something I envisioned, but, it was one of those things where timing is everything, and was invited to come in and watch a divorce mediation on a Saturday, sit on a couch, kind of be a fly on the wall with the idea to see if it was something I would be interested in doing.
David Fein [00:21:56]:
And it was fairly heated, for mediation. There were a lot of issues at play. There were five children at play and, still a lot of anger and animosity between the husband and the wife. And I loved it. I loved how the mediator was able to bring down the temperature and get them focused on what was important and sort of listen and validate and, you know, do all those things that mediators do, to help people sort of, you know, sift through the noise and the emotion and focus on what’s important. So, that was a Saturday. I came in the next Monday and, I’ve been doing divorce mediation, for the last three and a half years. And, at the beginning of this year, I went on my own and launched my own, solo law practice, doing divorce mediation, low or no, conflict, family law and still doing the energy work, that I’ve been doing for the bulk of my career.
David Fein [00:23:13]:
So, yeah, crazy pivot. The two areas have really nothing to do with one another, but I do believe that my work in the energy sector was a great, tool or background for the mediation in that I was tasked many times with bringing diverse groups together for, for say, a common good to try to pass a piece of legislation or a regulatory policy. And it was all about coalition building and bringing non like minded individuals together for the greater good. And, I feel like that’s a good training ground for the divorce mediation. Cause by definition, even if they’re friendly, there’s conflict. You’re, you’re, you’re trying to get them to agree to something and not even get them to agree. That’s really the wrong way to say it as a media. My job is to help them reach their own agreement.
David Fein [00:24:13]:
I can’t force them to agree to anything. I have no authority. I’m I’m a facilitator, for them making their own agreement. And and I love doing that. And it’s it’s a great, those tools I learned, I, I know I use every day, including, you know, going through divorce myself. And I was fortunate enough to go through mediation as opposed to litigation. So, I knew the benefits of it. I knew how it worked for me and my family.
Nancy Norbeck [00:24:44]:
It’s so interesting to me that, you know, you’re you’re talking about this… The coalition building on the energy side and the the diverse points of view that you’re bringing together. To me, I I think that that’s such an intensely creative thing to do, to go in and find, like, I’m I’m assuming the common ground in all of these different, very, you know, diverging points of view, presumably, that that you can work from because that’s that’s a real a real talent and a real skill to be able to go in and say, I have, I don’t know, these these five completely different groups of people who want totally different things, and how can I find the thing that brings them together? And then, you know, even more so in a divorce situation where you may have people who don’t even wanna be in the same room with each other. I I think that there’s deep creativity in that because it’s it’s really, really divergent thinking.
David Fein [00:25:50]:
Yeah. I mean, you’re you exactly got it, right? I mean that on the energy piece. Yes. It’s it’s what, what are, you know, it’s listening. It’s really the, the art of listening and active listening and being able to maybe, you know, explain something differently, or I hear you saying this, well, what about that? Or isn’t this another way to get you there? So, yeah, again, you’re right. The creativity comes in and it’s all… It’s all around finding solutions or understanding the need or the want or the desire and and maybe getting that individual or that organization to see it a different way or see another way to to accomplish that goal. Or maybe, maybe it’s an incremental approach to wherever the end goal is.
David Fein [00:26:51]:
Like, maybe you’re not gonna get it all right now, but we’ll take some steps. And maybe that’s sufficient for now. And so it’s all about relationship building and and and, developing trust and rapport, with the other side or the divergent interests because they’re not gonna wanna work with you and they’re not… Certainly not gonna be willing to, compromise, if there isn’t some mutual respect and understanding, of one’s position. And, you know, that leads to to give and take. And I think, you know, I’m using these analogies from the legislative arena, which, you know, is all about sort of, you know, a broad based group coming together. That usually makes for a good piece of legislation and it means for broad based appeal, and greater acceptance by the public and by those that have to cast the votes to, to pass any sort of legislation. And so that’s on a much bigger scale, of course.
David Fein [00:28:03]:
And, you know, it’s very similar in the divorce arena, right? It’s it’s two people. It’s two parties, that that by definition, they have conflict, they’re getting divorced, and they may have different views on things. I mean, whether it be religion, what… There’d be schooling, whether it be medicine, in medical treatment, maybe they’re not in favor of vaccinations. So, I mean, all those sorts of things come into play. And, you know, these are all strangers to me as the mediator. I have to get to know them, get to understand, you know, what makes them tick, what’s important to them. So again, it’s, it’s listening, it’s asking open ended questions.
David Fein [00:28:50]:
It’s trying to understand, cause that way you can find solutions or you can lead them to solutions much better. Once you understand and get to know the individual and really understand what’s important.
Nancy Norbeck [00:29:07]:
I’m, I’m noticing that I’m, I’m suspecting possibly very erroneously that, that it must have been easier with the energy folks, because I’m guessing that they may have been more interested in working together ultimately, but I could be completely wrong about that.
David Fein [00:29:30]:
You know, I think, I think it comes down to sort of their… Anyone’s views on the strength of their position. Right. Is it something that someone thinks they can carry today regardless, or they really… Do they need your support? Do they need you to to be on board? Do you… Do they think they have the the votes or the power to get what they want done? And I think, that dynamic is is really the key to that. So, in answer to to your your thinking, that may be the case. It just depends on kind of how any one individual views their…
David Fein [00:30:20]:
The strength of their own position. So it’s different in mediation because they’re not trying to convince me of… I mean, they may feel like they are, but at the end of the day, I’m not making a decision. They’re making a decision themselves. If they go to court, then, of course, they’re asking a judge, a stranger to make a decision about what’s best for them and their family. I’m there to listen and facilitate, but, ultimately, it’s their agreement at the end. And it’s a little different than I think the the energy analogy in that it’s humans’ lives and maybe lives of children that are involved that are affected by that. Now granted, there’s a big societal impact on these energy policy things, and I get that and I don’t mean to underestimate them, but it’s, it’s different when you’re, you know, working with two humans, individuals and it’s more personal in nature than, you know, something bigger policy wise.
David Fein [00:31:28]:
And and from that, the end point, at least for me and and kinda what I do, I feel like the personal and the divorce mediation is harder just because there are greater stakes for these individuals as opposed to maybe corporations or, you know, environmental organizations or labor unions or what have you.
Nancy Norbeck [00:31:56]:
Yeah. Well, and and also it occurs to me, like if you’re, if you’re willing to come to mediation, you’re probably at least somewhat more willing to actually sit down and talk to each other than if you’re going into court.
David Fein [00:32:11]:
Yeah. It’s so true. It is not required, you know, mediation. Some states it is before you go to court. Not in my state in Illinois. But, yeah, people are more inclined to be, collaborative, cooperative kind if they’re agreeing in mediation. Sometimes though, I find that one of the two maybe are there reluctantly. They don’t wanna get divorced or they don’t wanna be in mediation or they just wanna be somewhere else.
David Fein [00:32:48]:
And, you know, it takes time to sort of get that individual, you know, sort of engaged because if they’re not engaged, the mediation process doesn’t work. It can’t be one person. And, and many times I’ve, I’ve confronted that. And what you have to do as a mediator is recognize that maybe take a time out and maybe go one on one with the person you feel is sort of just going through the motions and just checking and making sure they’re okay. They need to take a break. You know, they seem a little withdrawn. And that’s really something you develop the skill as a mediator of seeing that. And, you know, that comes from being attentive and from active listening and just seeing the body language or lack thereof, one word answers, you know, that sort of thing.
David Fein [00:33:44]:
And, you know, that that’s hard. But, you know, that’s the one challenge in the mediation where sometimes they’re they’re there, but they’re not there.
Nancy Norbeck [00:33:59]:
I do know what you mean. I taught for eight years. I know what you mean. Yeah. I mean, and you’re right. It’s that, that body language unresponsive kind of thing where you’re just kinda like, Yeah. Okay. You’re having a good day today, aren’t you? Yeah.
Nancy Norbeck [00:34:17]:
Exactly. Yeah. But I I bet that, you know, I mean, again, given your your background with energy negotiations, that was also not entirely unfamiliar to you. It’s just a a change of context and maybe a few new tactics for for dealing with it.
David Fein [00:34:36]:
That’s right. You know, sometimes you find people who they’re… They just won’t budge. They feel like they have a strong position or they have someone in their corner who’s gonna advocate for them. And until someone tells them, you have to sit down with these people and try to hammer something out, You’re not gonna get all that you want. They’re not gonna get all that they want. Sit down, come back to us when you, you know, have a deal. And and then…
David Fein [00:35:03]:
And that happens a lot in the legislative arena where, you know, maybe someone’s overseeing negotiations, or is putting groups together and saying hammer this out because these things are complicated. These things are not what, you know, legislators deal with every day. And they need the input from the experts, from the industry people. And, they need them to figure this out because they don’t know what’s going to work. You know, they, they do their best, but, and they can call balls and strikes and they can say no way this is too aggressive. No, this doesn’t go far enough. There’s not enough consumer protection, whatever the issue may be. But yeah, I think it all comes down to, you know, how you view the strength of your own physician and, whether the powers that be tell you you need to move off that or not.
David Fein [00:35:59]:
You know, there there needs to be a driver of the bus, and and hopefully an active driver who can, you know, keep people online or keep them, you know, working in a cooperative way.
Nancy Norbeck [00:36:15]:
Yeah. And you mentioned you, like, you don’t have… I think the way you put it was you don’t have any authority. You’re there to to just kind of keep them working toward a plan. So that’s an interesting position for you to be in because, you know, you you are… From the sound of it, you’re you’re on their side in terms of getting them to a common place. And yet they’re they’re not inclined to want to work together entirely because they want different things and and you can’t force them to do anything. That is a fascinating spot to be in.
David Fein [00:37:00]:
It is. It is. And, you know, a lot of times you get stuck, you know, couples get stuck on an issue. They just can’t move from it when that happens. You know, I like to, you know, put that issue in the parking lot, you know, and let’s let’s try to work through the other issues and come back to it. You know, we don’t forget about it. We just move on to something else because, you know, sometimes it needs a fresh set of eyes, some fresh thinking, a good night of sleep, you know, all of the above. And, yeah, that’s the hardest part about mediation is that I I have no authority.
David Fein [00:37:43]:
Mediation is voluntary. You know, any one party can walk away and ended it at any time. It takes two willing participants. So that’s why your, skills in facilitating, conversation and understanding what’s important and maybe getting creative with solutions. You know, when, when clients get stuck, you know, I sometimes ask where they ask on their own, like, you know, Hey David, how have other people in our shoes dealt with the same issue? And that’s an effective tool to use as a mediator to, you know, give them a couple of different options. And I always like to get more than one option. If I have it, you know, and if they want me to offer a solution, I will, but I try not to do that, because it’s really their mediation. I want them to come to the solution because the goal is for a lasting durable agreement.
David Fein [00:38:48]:
And if you come up with it on your own, you’re more like, it’s more likely to be durable. And so that’s the balance. And it’s kind of a delicate balance of a mediator, especially when, if there’s a lawyer background like myself, who is always trying to find solutions to things. Right? That’s what we’re taught to find solutions. And so maybe I see the solution to an issue, but I have to sort of bite my tongue. Right? I I have to try to lead them there. And that’s the… That’s sort of the, you know, the the science of it a little bit.
David Fein [00:39:30]:
And and that’s where to the topic that we started with the creativity comes in and is how do you do that? How can you, you know, get to that goal? But letting them find their way to it. And you know, that’s, that’s the fun part when you’re able to do that on stuck and to help them get over an impasse. And sometimes you can’t, you know, it’s okay if you get all the issues, but one resolved in mediation, maybe you have to litigate one. You’ve certainly saved a lot of time and money by doing that. But, you know, my goal obviously is to get a complete, you know, all issues resolved through mediation. That’s my goal. That’s why they started with me. And then I know that’s their intention, you know, or or they wouldn’t be there.
Nancy Norbeck [00:40:30]:
So… Yeah. Yeah.
David Fein [00:40:33]:
It’s
Nancy Norbeck [00:40:36]:
it’s it’s so it’s so interesting because like you you talked about about the the active listening, but there’s also that that sort of leading without leading part. And I think I think they go together. And and it reminds me a little bit, you know, of that that first college professor I had when I went in with a question, and he wouldn’t give me the question. He asked me a bunch of other questions until I got there myself, you know, and that I don’t know if that’s exactly how you do it, but but that… I remember that moment of, woah. Woah. Wait. That was really wild and cool and much more useful and interesting than if you had just said, oh, it’s this, and I had gone on my merry way.
Nancy Norbeck [00:41:28]:
You know? And Yeah. It’s it’s like you said, it’s it’s them reaching their own conclusion that makes it more more durable, more more worthwhile. It’s it’s a, it’s a real skill. And as you said, it’s a science. That sounds like an art to me too, that, that magic mix of, of both.
David Fein [00:41:51]:
Yeah. No, it definitely is. And, you know, I think, I think you develop your own style over time, you know, how you you’ve manifest on it. You know, when I started, I, I did write a little note on my notepad, you know, no solutions, no solutions, you know, ask the, you know, tell me a little bit more about why that’s important to you. You know, help me understand, you know, tell me more, you know, what is, what are you concerned about? What are your, what are your fears about, you know, Sam having overnights with his dad? You know, what is it that, is, is making you reluctant to allow him to see, you know, why don’t they have overnight with the kids and, and just to understand perspectives. And, that way then, you know, I can help guide the solution. And, you know, I think it’s it’s really, it’s like, you know, doing a deposition. If I was a litigator, you know, I’m trying to, you know, I get certain information from, you know, initial consultations.
David Fein [00:43:03]:
Right. But you really don’t get into it until you get into it. And, you know, sometimes people are really wanna share everything and sometimes people are reluctant and, you know, you have to dig and you have to keep asking questions that maybe, you know, you have to ask it the right way to elicit the response that will help you. And one of the things I tell all my clients, which is kind of part and parcel of this is have goals, you know, what are your goals for this process? And I mean, not the warm, fuzzy. I want the kids to be okay. I want us to be good to each other. Like specifically, what is it? You know, like I want to stay in the house till the kids go to college period. That’s important to me.
David Fein [00:43:51]:
Okay. That’s good to know. You know, like what are your priorities? What are your top three or five? And I do go back to that with clients and, make sure that they’re thinking about that. Because again, that’s helpful for me as the mediator to know what’s important to each of them individually, and they can be in conflict. That’s fine, but identify your own priorities. That way it keeps all of us on track with what’s important and to keep the eye on that and maybe not get caught up in the minutia or less important issues if that’s really your priorities. And, you know, that’s, that’s one of the things that, you know, I find can be really useful and people, you know, unless you push them on that, they’re they’re not gonna think about that. Right? They’re kind of in a fog in the process.
David Fein [00:44:52]:
They they wanted it over before it began. I know I felt that way when I was in it. I just kind of wanted to get done. You know, it’s not pleasant. I mean, it’s right. It’s that step where you’ve already made the decision that you’re, you’re going to uncouple, then you want to get through that, that period as quickly as you can. That was my goal. I know in my head, going through mediation.
David Fein [00:45:22]:
And I think I was somewhat, somewhat maybe not paying attention to all the details because I was more interested in getting done, and and starting the healing process and transitioning from where we were to where we were gonna go and what that meant meant for the kids and so forth. And, you know, so I understand that as a mediator, I think having walked in my client’s shoes before, it gives me that perspective. I think it obviously gives a degree of credibility with them off that. I know some mediators don’t plan to share their personal experiences. Just like there some therapists don’t like to get into their personal stuff. I find I tend to do it maybe more than others because I believe that that’s relatable and I believe that’s why I could connect with people. And I believe that that’s why, people trust me and, and are willing to work with me because they, they get a sense that I’ve, I’ve sat in that chair where they’re sitting. Like, I know what they’re going through in their mind.
David Fein [00:46:34]:
I know what they’re staying up at night, worrying about being able to make ends meet and to pay the mortgage and to keep the lights on and feed their kids and pay for college and all that other stuff.
Nancy Norbeck [00:46:48]:
Yeah. It’s big stuff. Big stuff. Yeah. Well, I’m curious because, you know, we’ve talked about the active listening before. And since you have all that experience with litigation and deposition and and all of that, I’m guessing that you, you know, had some decent active listening skills when you came into mediation. Did you find that you really were well prepared in that area, or did you learn additional skills when you started doing mediation?
David Fein [00:47:18]:
I learned additional skills. I took a phenomenal training course that, Sandra Crawford and Matthew Carroll, offer at Northwestern University’s School of Professional Studies. It was a phenomenal course. I took the course after being in mediation for two months. So it was good. I didn’t have a whole lot of experience. And, what I got from that program was a much greater, awareness of how to do the act of listening. I think you’re right.
David Fein [00:47:55]:
I think I did have good skills in that, but, they helped me hone that a lot better. You know, just from listening, you pick up so many things. And I remember that from my trial ad classes in, in law school is you really need to listen to what the witness says when you’re, when you’re asking a question and not be looking ahead to your next one. Because many times you get tidbits that you didn’t expect to get, or it’s a curve ball. And so, if you miss that, you miss an opportunity. And it’s obvious because everyone else is listening and hearing that like, oh my god. Why didn’t he pounce up? And and I remember missing that a couple times in, like, practice things and and the the teacher saying, you know, David, you missed, you had a zinger there that you could have knocked out of the park and you were so focused on your script, you know, that you couldn’t do that. And so, yeah, I I attribute that program in that class, to helping me be a much better mediator than I would have been otherwise, because of they really emphasized that, the active listening and, not being thinking ahead, but really engaging and listening and taking your time and being maybe more deliberate about the process.
David Fein [00:49:25]:
And so, you know, that’s something, that’s really, I think, essential to being an effective leader.
Nancy Norbeck [00:49:32]:
Oh, I’m sure. I’m sure. I mean, I had mentioned to you when we first talked about doing this that, you know, I really had not understood until I started doing this podcast how much we don’t listen to each other. Because, you you know, until you are sitting down with people really listening and paying attention, you don’t realize how much you don’t do it in other contexts. And I think we take it for granted. We think we’re listening, but we’re not. You know, we’re thinking about we have to stop and pick up milk on the way home, and what are we gonna make for dinner, and the kid has a dentist appointment, and, you know, the reports due for work and all of these other things, and we’re not really paying attention. And I even notice it now when, you know, I’m trying to watch TV, and I’m checking my phone for something else, and I’m like, I just missed the last five minutes of this thing.
Nancy Norbeck [00:50:24]:
I was not paying attention at all. It’s ridiculous. But when I’m in this kind of situation where I really am paying attention, it’s a world of difference. It doesn’t always translate.
David Fein [00:50:38]:
Yeah. I mean, I think our lives have changed since we got these things, you know, that have not helped with staying present focused. I mean, I know we, a lot of, you know, people give grief to their children about that, but us adults can be just as bad, especially when we have busy careers. And we’re, you know, a lot of balls in the air and it’s hard. And so, yeah, in that, in that mediation room, when I’m in there, you know, I’m, I’m trying to be, you know, as focused as I can be. And if I’m not for a minute, then I, I miss those things. I’m not doing the active listening. I’m not following up with a question because something they said, like, I’m, I’m thinking about the next thing, or like you said, thinking about getting my, you know, kid to a practice or a doctor’s at the door, you know, I forgot to go grocery shopping.
David Fein [00:51:34]:
Oh my God. You know? You’re right. It’s hard. But you’re right. It’s a, it’s a great relationship trait.
Nancy Norbeck [00:51:45]:
Oh, yeah.
David Fein [00:51:45]:
You know, it’s it’s much bigger than what we do. It’s it’s just… That’s a good thing to be, to be to be present, and to be more present. And I think I see a lot of people talking about that. I think for better or for worse, COVID taught us that, you know, what’s important to us and be present and so forth. And a lot of people change their priorities in life, because of that experience. Whether that be careers, lifestyles, you know, what have you, you know, that’s maybe one of the, one of the hidden benefits that came out of that whole experience, was maybe renewed focus on what’s important to try to keep that funds.
Nancy Norbeck [00:52:27]:
Do you think that people who, who go through that mediation experience learn more about listening through that process?
David Fein [00:52:34]:
I think so. I think, you know, one of the goals, right, is to set up a successful platform, for, you know, ongoing future communications. If you have children, you and your ex spouse are going to be forever connected through that, through birthdays and graduations and weddings and, unfortunately, deaths and all sorts of life experiences. So, one of the keys to a successful or to post divorce, you know, relationship is being able to communicate and communicate effectively. And in Illinois, we require all, divorcing couples to take a four hour co parenting online course as part of a requirement to get divorced. And I have joked, tongue in cheek, that they should require that before you get married, before you can get a marriage license. Because in it, you learn all these communication skills, which, you know, maybe seem trivial or obvious, but, obviously, there’s a breakdown in the marriage. And and so, you’re gonna have to put the…
David Fein [00:54:06]:
Even if they’re still hard feelings, kind of need to park them as it relates to co parenting issues and issues with your children, because you’re not going to be an effective parent if you’re still angry because of this therapy. You’re not going to effectively communicate. So I do think going through the mediation process, hopefully, teaches couples, you know, better ways to communicate. And in addition to the class, like that’s what I’m trying to set up is a communication system that works. That’s why we get into the detail of how do you want to communicate with your ex spouse? Do you want it to be text? You know, phone call, email, use an app, you know, all different ways, you know, and sometimes that’s in conflict. You know, and and so it’s not just the mode and that’s just one example, but then how are you communicate and how you choose your words and how things can be interpreted. And so, yes, I feel that the process itself if done right, should help couples with that going forward.
Nancy Norbeck [00:55:23]:
That’s great. I think that’s a really good point. I think that, you know, training like that training sounds even worse than just a class, but, you know, there’s so many things that we are assumed to know about life Mhmm. That we’re never actually taught. And that kind of communication skill and basic relationship skill is one of them. You know, a lot of us don’t necessarily grow up seeing it. We don’t we don’t really know how to navigate difficult situations with other people, and yet we’re allowed to enter that kind of relationship blind. You know, we’re we’re just gonna go off and get married, partner up in whatever form, and hope for the best.
Nancy Norbeck [00:56:10]:
And then we wonder why things don’t go well, and that seems kind of crazy to me to just assume that everybody’s gonna figure that out when there’s no basis for that assumption at all. Right?
David Fein [00:56:29]:
Yeah. Yeah. I think you’re spot on. You’re spot on.
Nancy Norbeck [00:56:32]:
Yeah. Yeah. No. I think that would be a great idea for everybody, for, you know, the couple and for the kids and for everyone around them. But, you know, you and I do not have the power to make that happen.
David Fein [00:56:46]:
That is correct.
Nancy Norbeck [00:56:48]:
But it certainly would be a wise choice for people to decide to do something like that because they want things to go well.
David Fein [00:56:56]:
That’s right.
Nancy Norbeck [00:56:57]:
Yeah. It really would. Yeah.
David Fein [00:56:59]:
It’s a choice.
Nancy Norbeck [00:57:01]:
Yeah. Well, do you have any pointers for people who want to improve their listening skills before we go?
David Fein [00:57:10]:
The active listener. Yeah. Stay focused, you know, don’t put down the phone, get that other thought out of your head. It’s just as easy to actively listen as it is to not, you know, so, just stay focused and stay present. I think that’s a great skill set to have and anything you do, right. Or in any relationship, friendship, in any kind of relationship is, is to listen and, and to actively listen when you’re engaging with someone and whatever that thing is that’s also ping pinging you at the same time, it will be there when you’re done with that conversation. And I think we all are guilty of expecting the immediate response because of these technology tools that we have now. And that’s, that’s a change, right? That’s, that’s different than what we used to have.
David Fein [00:58:09]:
You know, your hero was reachable now, in one form or another. And I think that’s different. You know, I remember back in the day when I was a kid and I didn’t appreciate it until I got older, my father would go nuts when the phone rang during dinner. The home phone, it would drive him nuts and he would get so frustrated. And, you know, I remember saying like, yeah, not their fault. They’re calling and they’re whoever they are, they’re calling, But it was because he spent the whole day on the phone as a lawyer, and he didn’t wanna be on it anymore. He didn’t wanna hear it. He he wanted that break.
David Fein [00:58:55]:
Like, he wanted to be present with everyone and not being interrupted. And, it was kind of an interesting analogy. And obviously, it’s taken on a much different, you know, tenor today with with technology. It’s, you know, but he doesn’t do well with the phone ringing, you know, at all times, the cell phone, the text messages, the the dinging and all of that, you know. And it’s, it’s just a different lifestyle that we live in. So if you can be present, you know, I think it’s just… You’re gonna enjoy life a little bit more too, and you’re gonna be more engaged in whatever it is you’re doing.
Nancy Norbeck [00:59:35]:
Agreed. Agreed. Well, thank you so much for this conversation. It’s been really, really interesting, a little different from what I normally do, but, but really fascinating. And I think people will appreciate it. So thanks a lot.
David Fein [00:59:51]:
I appreciate you having me. Thank you very much, Nancy.
Nancy Norbeck [00:59:56]:
That’s this week’s show. Thanks so much to David Fein for joining me and to you for listening. David’s links are in the show notes. I hope you’ll leave a review or comment for this episode. There’s a link in your podcast app and it is super, super easy and it really makes a difference. If you enjoyed our conversation, please do share it with a friend. Thank you so much. If you’re tired of being productive and just want to feel alive again, come join us in the follow your curiosity creativity circle.
Nancy Norbeck [01:00:27]:
It’s a free hour each month to stop overthinking, make something just because you want to, and reconnect with the part of you that remembers how good it feels to play. You can find it at the link in your podcast app. See you there, and see you next week. Follow Your Curiosity is produced by me, Nancy Norbeck, with music by Joseph McDade. If you like Follow Your Curiosity, please subscribe, rate, and review on Apple Podcasts or wherever you get your podcasts. And don’t forget to tell your friends. It really helps me reach new listeners. Thanks so much, and see you next week.