Compromise Brings Promise

A Middle Ground Mindset in Mediation Can Reap Positive Results

by Michael Heath

Winner takes all is not a phrase that ever falls from the lips of a mediator. Divorce mediation is a solutions-based process where the goal is to reach a settlement satisfying both spouses. When open-minded people mediate knowing what they want while understanding the other side’s concerns, needs, desires and fears, great things can be accomplished.

Brainstorming in Mediation to Find Solutions

One of the great aspects of divorce mediation is the free flow of ideas. Creativity is encouraged to allow for tailored planning that fits people’s unique circumstances rather than relying on impersonal guidelines. Here’s an example:

Nick and Carol decide to use mediation to bring an end to their marriage. Both agree on most issues but have trouble coming to terms on custody arrangements for their only child, Gracie. Mother and daughter will continue to live in the family home until high school graduation, but the issue is with Gracie’s devotion to the softball program and her travel team where Carol is a coach. State guidelines would normally give Nick time with his daughter every Wednesday night and every other weekend. Weekday visitation is not a perfect fit since Nick is a salesman who often travels from Monday to Friday. Carol insists she keep Gracie every weekend during the five-month softball season so she can oversee Gracie’s softball participation. She also believes that her daughter’s softball talent is putting the high schooler on a trajectory toward a full sports scholarship to a major university. 

 The mediator realizes the importance of the softball issue and offers a compromise. It is suggested that Carol keep Gracie until all weekend softball activities are concluded. This would mean Nick getting Gracie on Saturday or Sunday when Gracie finishes, or all weekend in the event of a rainout. Nick would attend all events as a spectator. He would also get Gracie on Wednesday when not on the road. To help Nick agree to the compromise, Carol offers Nick time with Gracie every Thanksgiving weekend and every other Christmas. He agrees. 

In the landmark book Getting to Yes: Negotiating Agreement Without Giving In, authors Roger Fisher and William Ury invoke the premise that mediation can produce better results than if the contentious issue is simply split down the middle. They use the figurative term expanding the pie rather than splitting the pie. In the above example, Nick gives up some alone time with Gracie but will be more involved in his daughter’s softball playing, something that pleases Gracie greatly. The November holiday is a big event for Nick’s extended family so he is ecstatic knowing Gracie will be with her cousins. The agreement allows Nick the flexibility of seeing Gracie in the middle of the week provided he is not away for work. Carol understands the importance Thanksgiving has for Nick, so she is okay with forfeiting the holiday to him. She decides to use the arrangement as an opportunity to better connect with her own family by making the fall holiday an annual sojourn to Vermont where her two sisters and mother reside. Nick, Carol, and Gracie have all benefited from the conciliatory mindset brought to the brainstorming session.

You Won’t Get It All 

When a couple ends a marriage, it’s as if one life chapter ends and another begins. Things will never be like they were and considering what brought the marriage to divorce, that is likely a good thing. Each spouse needs to assert what they want while retaining a willingness to settle. It may even be helpful to recall the pragmatistic lyric of a famous Rolling Stones song, “You can’t always get what you want, but if you try sometimes, well, you might find you get what you need.”