Win-Win Is Real

Negotiating a Divorce Settlement That Satisfies Both Spouses
by Michael Heath

The idea that two sides can settle a dispute to the point where both are satisfied may seem fantastical. The zero-sum culture we live in may contribute to the belief that there must always be a winner and a loser. Judge Judy hands-down televised winner-loser verdicts before millions of adoring fans. America’s Got Talent contestants perform in front of celebrity judges until only one is left standing. Professional and collegiate sports teams play until there is a winner or, in the event of a tie, continue playing until a clear victor is established. However, in the case of divorce mediation the goal is always win-win.

The Win-Lose of Divorce Litigation
The dispute resolution technique most often employed in failed marriages is litigation. One spouse hires a lawyer to sue the other spouse for divorce. Each side builds a case. Every issue comprises a win-lose element. Granted, matters are usually negotiated by the lawyers prior to going to court. But it is an inefficient process. The discovery process (case building) is quite expensive. Lawyers and paralegals are paid for all the hours it takes to get the case to a place where negotiations can proceed. There is not only the financial cost but the time it takes to gather information and respond to motions. All the legal maneuvering can be very stressful, enflaming already tested emotions. The win-lose progression of divorce litigation is no easy road.

Win-Win Through Mediation
Considering the switch from the contentious, traditional divorce model to the cooperative, mediation approach requires a paradigm shift. Instead of the win-lose mindset inherent in litigation, spouses collaborate in mediated negotiations to resolve issues. Each one understands that they may not get all that they want but will get enough to be satisfied. Following is an example of how the process works:

Gary and Alice are a childless couple who have been growing apart for the last several years. They tried marriage counseling with little result and have decided to take their lives in different directions. The couple hired a reputable mediator who helped them divide the property, settle income issues, and even devise a plan for sharing custody of their two Collies. One matter that remains unresolved concerns two snowmobiles they keep at a cabin owned by Gary’s old college roommate. This out-of-state friend bought the weekend getaway as an investment and is glad the couple uses it while keeping an eye on the property. Three years earlier Alice won $30,000 with a lottery ticket and used her winnings to purchase the two recreational vehicles. Alice believes she should get the snowmobiles since it was her good fortune that allowed them to buy them. Gary contends that he was the one who maintained the snowmobiles, ensuring that they were always gasoline-ready and in good working order. He also took the lead in storing them at season’s end. He contends that the cabin owner is really his friend and her using the place with him completely out of the picture would be an awkward arrangement. Both will soon be seeking new partners and using the cabin and snowmobiles will help with establishing new relationships.

Each spouse has dug in over the issue. They see it as a win-lose dilemma where eventually one of them will have to give in. The mediator has instructed them that if they were to take the issue to court a judge would divide the snowmobiles by ordering that each take one. That result would be a classic lose-lose since they are one-rider vehicles. Besides that, the costs of lawyers could exceed the current values of the three-year-old snowmobiles, making the effort a true lose-lose.

Fortunately, the mediator sees a way through the stalemate. She asks both spouses if either one intends to visit the cabin every weekend. Each agrees that obligations prohibit them from going so consistently. The mediator proposes setting a schedule where the cabin is available to each spouse on an every-other-weekend basis. Since Gary is mechanically inclined, he will be responsible for all repairs and make sure the tanks are always filled with fuel. At the end of the season the responsibility of preparing the vehicles for storage falls on Alice who will also get them to the facility and pay the seasonal rent. The couple agrees with the plan.

The above example is a classic win-win since both got what they wanted, which was use of the cabin and snowmobiles. It worked since both sides were flexible in that neither got full-time usage but enough to be satisfied. Most interesting is that the clever mediator improved the arrangement by assigning tasks to each spouse. In their seminal book Getting to Yes: Negotiating Agreement Without Giving In, Roger Fisher and William Ury discuss “dividing the pie” and “expanding the pie” where people can negotiate deals that come with a value-added element. A less savvy mediator may have stayed with the every-other-weekend schedule. Dividing the time and coming to an agreement would have provided a win-win result. But the mediator expanded the pie by ensuring Alice with snowmobiles that were always in good working order and fuel ready. Gary is relieved of the annual storage task and related cost. It could be argued that both spouses ended up with a deal exceeding their expectations.

Choosing Mediation Over Litigation
Not all divorce situations qualify for a mediation approach. Spouses should do some research first and both must be onboard with the process before proceeding. When couples choose mediation, they are almost certain to solve issues in a way that leaves them feeling like winners.