Finding the Right Mindset for Divorce Mediation

Seeking Solutions Together for Positive Results

by Michael Heath

Mother Theresa was invited to participate in an anti-war demonstration. The world-famous Catholic nun declined the request, leaving invitees bewildered. Why wouldn’t Mother Theresa who was associated with caring and devotion to helping the most destitute not want to take a stand against war and all its ugliness? She then explained that if there were a peace rally, she would certainly attend. Her point was that she never wanted to be part of something where the focus was on war or anything else she disagreed with. In this case, Mother Teresa preferred to put her attention on peace. The same sort of thinking should be applied to mediation where both spouses can be successful in achieving positive results by placing all their energies on working toward solutions, not defeating the other side.

Positions versus Interests

In litigation, each side takes a position before attempting to outdo the other. Information is gathered and organized. There may be subpoenas, depositions, and other tools of the court to obtain additional evidence. Legal tactics are used and threats are made. The two lawyers attempt negotiation and if an agreement is not reached the case will end up in court. The issue with the litigation model is that the whole focus is on the positions. Each side becomes entrenched in taking a stand that they are willing to fight for.  The win-lose process is replete with inefficiencies that cost money, consume time, and enflame emotions. The very adversarial nature of litigation encourages litigants to focus on “winning” or “not giving in” rather than some logical result.

When mediation is employed to resolve a dispute, the attention focuses on the interests: the needs, concerns, desires, fears, and goals. If a position is the what, then interests are the why. For example, if an extra three hundred a month in alimony is the position, then the why may be to effectively maintain the marital home until the children graduate school. This could be a mutually beneficial solution for both spouses who desire that their children grow up in a house that is well kept.

Negotiation, Not Ego-tiation

In his book The Power of Nice: How to Negotiate so Everyone Wins—Especially You! author Ronald M. Shapiro reminds would-be negotiators that the activity is negotiation and not ego-tiation. The point he makes is to take the ego out of it and know that the effort is to solve a problem. Each spouse certainly should exert a certain level of assertiveness so that what is wanted is clearly understood. To make the process work effectively, though, there needs to be a near equal amount of empathy for the opposing side’s interests. That is both giving and taking. Anyone coming into the negotiation with a singularly self-interested mentality cannot expect the mediation approach to succeed.

Mediation for Win-Win Results

While divorce litigation is a fight-it-out, win-lose process, mediation is a solutions-based approach where spouses may not get all that they want but enough to be satisfied. This is known as your classic win-win result. Resolving issues through creative brainstorming with the assistance of a mediator allows couples to remain in control, save money, ensure privacy, and maintain an amicable relationship while achieving a settlement in less time. When mediation is employed correctly, both spouses leave the negotiations as winners.