Summary: Facilitative divorce mediation focuses on the wants, needs, and fears or concerns of the spouses. It can lead to a wise agreement, created by the spouses and designed to serve the best interests of the spouses and their families.

I. Introduction

Getting To Yes; Negotiating Agreement Without Giving In by Roger Fisher and William Ury, first published in 1981 and based on the work of the Harvard Negotiation Project, describes interest-based negotiation, where the parties identify their “interests,” i.e., their wants, needs, and fears/concerns, which they write down in specific language and then use to generate proposals for resolving each issue. Avoiding the confrontation that characterizes position-based [offer/counter-offer] negotiation, the parties create agreements that serve their interests, and do so faster, with less aggravation, and with less damage to ongoing relationships.

This article discusses using the interest-based negotiation model in the mediation of divorce issues.

II. Using Interest-Based Negotiation in Facilitative Divorce Mediation

An example of determining interests to resolve a dispute can be shown by an open window. One of the illustrations of the interest-based approach in Getting to Yes tells the story of two library patrons who are arguing about whether a window should be open or closed. The librarian listens for a moment and then asks one man why he wants the window open. He responds that he wants the window open so that he can get fresh air in the room. She then asks the other why he wants the window closed. He replies that the breeze is blowing his papers around. The librarian then goes around the corner and opens a different window, so that there is fresh air but no breeze; both patrons are satisfied.

The point of the story is that instead of arguing from opposing “positions” [window open/ window closed], it is often better to determine the respective interests of the two parties, and then try to think of a solution that serves both parties’ interests. In court [position-based model], the judge adopts the position of one side or the other, or some intermediate position, which typically leaves one or both parties at least partially dissatisfied. Alternatively, in facilitative mediation, both parties may be able to get what is important to him/her.

A mediator is a neutral person who helps the parties work out agreements to their disputes. A facilitative mediator uses the interest-based negotiation model to get the parties to talk to each other. Facilitative divorce mediation can be done at any time, but is most effective if undertaken at or before the filing of the divorce case, and without lawyers present.

Optimal seating for best results in facilitative mediation.

At the start of a facilitative mediation, it is important to seat the parties in a way that contributes to the process, i.e., sitting side-by-side, across the table from the mediator, and looking at a large flip chart or screen projection. The mediator can then elicit the wants, needs, and concerns of each party, and write them down in specific language. The mediator may add to the list, e.g., stating an interest of the couple’s children. All three can then use this list of “interests” to make proposals. The parties have the sense of working together to address the interests that are listed. Caught up in this enterprise, they will tend to forget the anger and other negative feelings they have against each other and begin to work cooperatively.

Sitting side-by-side, the parties are not looking at each other as they would be if placed on opposite sides of the table. With divorcing couples who are not getting along, this is especially important since a mere glance or facial expression may trigger a habitual negative response with resulting discord. Apart from that, it is simply a matter of common experience that sitting alongside someone is less conducive to starting an argument than facing opposite the person.  

An example of using the interest-based approach in creating a co-parenting agreement.

One important issue in divorce is the “co-parenting agreement” (how the parties will share the time with the children). As an example, the husband may state his position that he wants to take his son on weekends to participate in “club soccer” tournaments and games in the surrounding area. The mediator may ask why this is important, and elicit that the husband is hoping the boy will receive an athletic scholarship to help pay for college.

The husband may also divulge his concern that some of his son’s schoolmates have been cited for illicit drug use and his hope that having the healthy environment and the physical demands of soccer will discourage his son from such involvements. 

The wife may take the position that she wants the son to spend the weekend in church-related activities. The mediator may elicit that she believes in religious training for her children, and wants the family to be in good standing with other churchgoing families, and, like her husband, is in fear of her son associating with drug-using fellow students.

When the parties have clearly listed all their interests, the mediator may suggest additional matters that the parties have not considered, such as certain interests of the children. Understanding the concerns, needs, and wants of the other party and affected others can provide the basis for agreeing to end the dispute under acceptable terms that will preserve the relationship between the parties, i.e., what Fisher and Ury call a “wise agreement.”

III. Is “Closing the Deal” a Requisite of Divorce Mediation?

Couples come to a divorce mediator with a variety of attitudes. Sometimes one spouse, or perhaps both spouses, are undecided on dissolving the marriage. Divorce will alter lives in a major way – not only the lives of the spouses, but those of their children, and sometimes those of extended family members and others. Should the divorce mediator steer the parties toward completing the termination of the marriage?

A mediator in a business dispute works diligently to bring the mediation to settlement of all issues. The parties and their attorneys expect no less. Attorneys and judges send cases to a mediator who is known as a “closer.” 

Even in divorce cases, in the courthouse “back-end” mediation held shortly before trial, the mediator is tasked to settle the case, typically in one day, so it can be taken off the court’s busy calendar. Under the threat of what could happen at trial, the parties are pressured to compromise their respective positions to complete the divorce. Earlier in the case, preliminary issues would have been decided in a few minutes by a judge with 15 or 20 or more cases on his/her morning calendar.

A couple that comes to a private family law mediator is under no such pressure. In private mediation, an issue may be given as much time as is necessary to best resolve it.  Moreover, the decisions are made not by a harried judge, but by the parties themselves, through negotiation which is facilitated by the mediator.

Negotiating in the businesslike but relatively friendly atmosphere of the mediator’s office, the parties may even decide to delay the divorce. Some spouses may decide to enter couples counseling. Others may decide on their own to give their marriage another chance. The private divorce mediator’s function is not to “close the deal” of divorce.  Instead, it is to provide whatever services the spouses need to work out their unique problems, in the way in which they ultimately decide, upon reflection, is best for them and their families.

In California, as in almost all states, divorce is “on demand.”  If either of the spouses states in court that there are “irreconcilable differences” a divorce judgment will be entered, and after the statutory six-month waiting period, the marriage will be terminated. Therefore, a spouse who wants to terminate a marriage cannot fail to “win” a divorce. However, the terms of the dissolution, and factors affecting how the children are affected by the divorce, are within the parties’ collective control through negotiation facilitated by a mediator.

IV. Conclusion

Facilitative divorce mediation is better than divorce court because it is lower in cost, faster, and minimizes damage to relationships and avoids harming children. As set forth above, it can lead to a wise agreement, created by the spouses, and based on the best interests of the spouses and their families.