Following is an anecdote from a real dissolution of marriage. It’s intended to illuminate the way a mediated or collaborated case can unfold when all goes well. In the context of my last three-part article on the various approaches to mediation, what’s set forth below is an essentially transformative model. All three of the approaches detailed previously – evaluative, facilitative and transformative – can be used in both mediation and collaborative settings. I have of course omitted or changed identifying details to preserve confidentiality.
This was a collaborative divorce in which I was involved some years ago when I practiced in Tucson, Arizona. I represented the husband. The parties had plenty of money and neither was particularly materialistic. The husband had been successful beyond his dreams. Even though they were well off, they could have resolved the financial issues on their own. But they had a three-year-old daughter and were on the brink of hiring the most aggressive attorneys they could find to litigate parenting time. The mother was offering the father two days a week. The father was insistent on three days a week. Any suggestion of splitting the difference would have been met with outrage. Each expressed a willingness (initially bordering on eagerness) to litigate. Each expressed a desire to be “vindicated” or essentially die trying. My client said he could live with the result so long as he knew he had given it his all. It was a challenge to help him see that such an approach was likely to end badly. I’m sure the same was true for the wife. In fact, it was probably even harder to guide her to collaboration because on the surface, she appeared to have the better case. These two were really caught in their initial positions: three days a week versus two. If they were to settle collaboratively, we would have to delve into the interests beneath those positions.
As the attorneys helped guide discussions in a series of settlement meetings, the deeper (and as yet unexamined) interests slowly emerged. The father was eventually able to articulate that when his family was still residing together, though it was difficult to come home from work given his sadness over the emotional distance within the marriage, their daughter was always thrilled to see him. Her smiling face and eagerness to jump into his arms was like a ray of sunshine. If he came home after she was asleep, it was a joy to stand in the doorway of her bedroom and watch her slow, steady breath and angelic face.
Since the separation, his weekends with their daughter were wonderful, but for the five days between visits he was coming home to an apartment that he experienced as empty, dreary and lifeless. He had waited a long time to have a child and felt it unlikely he would ever have another. He was heartsick over the sense of loss now that he saw her so much less frequently. He realized also that his daughter would, in just ten years, be a teenager, far more interested in her friends than in spending time with daddy. So he saw himself as having a short window to share this wonderful quality of relationship (something he considered of enormous value to both his daughter and himself). This is why he felt so much intensity and urgency.
He knew that his daughter never wanted their weekend visits to end and protested having to go home. He felt that a third day, inserted right in the middle of his work week, would result in he and his daughter only going two days at a time without seeing each other. And while expressing an understanding that it was difficult for both of parents to not have their daughter around every day (as they had when the family still lived together), he shared his view that this three-day proposal would be so much better for both his daughter and himself.
The mother was able to hear all of this and even appreciate the father’s point of view. But she still felt that three days a week was too much. A similar excavation process revealed that, for her, the primary concern was the child’s emotional wellbeing. From where she stood, the father was married only to his work. She stated her view that this was why the marriage had failed. In his spare time, he would get obsessed with this hobby or that for a short time. But then his real obsession, work, would reassert itself. She called it his one true love. She spoke of the motorcycle rusting in the garage as proof. She also spoke of the boat they were selling at a loss and other hobbies that had been his passion for a time. She expressed an opinion that he needed to grow up but, when asked about the feelings underneath her strong judgment of her husband, she admitted she was speaking from a place of hurt.
Most important, though, from her point of view, was that while true that their daughter was always eager to see daddy and to jump into his arms, there were many nights when she had fallen asleep in mom’s arms, distraught, because daddy had promised to return in time to tuck her in and was not there. There were many times he would rush off in the morning without even saying goodbye. Mom felt that someone needed to protect their daughter from being continually disappointed by her loving but childlike and irresponsible father.
She felt that she was being generous, giving dad every weekend – since her attorney had explained that he was most likely to get every other weekend if the case went to court. She wanted him to have a close relationship with their child. She wanted that for their daughter too. But she felt that limiting him to two days a week kept dad focused on the importance of their time together and less likely to place his work interests ahead of the child’s needs. In other words, she saw the father’s sense of scarcity as a good thing. And she felt that her willingness to take all the school days and give him all the weekends (“the fun time”) was a huge concession – something he ought to appreciate.
Notice how, after hearing each of them out, it’s easy to stand back and think “well that makes sense.” For the clients this is often the first time they’ve heard the other around the issues discussed in a way that resonates as having at least internal logic. They often move from seeing the other as crazy or a bully or just plain unreasonable to being able to say something along the lines of “I get where you’re coming from.”
When the mother had gotten to her truth, the dad was able to acknowledge much of what she had said. He responded, “I have been too focused on work. And I have submerged myself in hobbies only to later lose interest. But our daughter is not a motorcycle. She’s everything to me. So much so, I’ve realized I need to take Wednesdays off.” The mother responded, “I don’t believe you. I don’t trust you. But I’d love nothing more than to be wrong.”
Consider for a moment what a huge step this is. Even though not a single agreement has been reached at this point, and even though they were still miles apart in terms of what would be best for the child, the character of the discussion had shifted. They saw a common landscape of reality. They both could align on a value that ideally dad would have a really close relationship with their daughter. They agreed he had been placing too much emphasis on his career at the expense of her needs and that this had at times been painful for their daughter. From this place, looking at their underlying needs as a family rather than their initial positions (three days per week versus two), they were able to see and approach the conflict in a new way – not as adversaries but as partners in figuring out what would be best for all of them as a family.
Only at this point, after all the work necessary to bring underlying needs into sharp focus, were we ready to begin looking at options for settlement. Had we tried sooner, it would have forced us to engage in an evaluative manner – slipping back into discussions over what a court might do or what a custody evaluation might reveal. Those sorts of discussions would have gone nowhere. My experience as a mediator and collaborative attorney has taught me that when discussions slip into an evaluative framework, it means we haven’t done enough to fully explore underlying interests and needs.
For this family, with each parent’s interests now in plain view, and with each able to see that what the other wanted was not necessarily standing in opposition to what he/she wanted, we could finally begin to have a productive conversation. This, more than anything, is the key to understanding the art and science of conflict resolution.
As we began to discuss possibilities, the parents agreed to meet with a child therapist whom the attorneys suggested – a professional for whom each attorney had great respect. Both parents would meet with him separately, and we would schedule our next settlement meeting for after that had happened.
At our next meeting, each reported a very positive experience. They both liked and trusted him to see the big picture and guide things forward in a wise manner. They chose together to engage him as the therapist for their daughter with a specific purpose in mind. They agreed he would see the child every week for a specified duration, during which dad would have two days a week parenting time. They agreed that, after this specified duration, the therapist would decide on an ongoing basis how much time dad would have within the following parameters: No less than two days and no more than three days per week.
Both parents were extremely satisfied with this agreement and the balance of their settlement quickly came together. Looking at it from the level of interests, one can see why. Dad got the opportunity to have the kind of meaningful relationship with his daughter that he wanted. He would have to place the child’s needs ahead of his tendency to get compulsive around work, and he would be held accountable, but that was actually a really important benefit in his view. The mother received assurance that the emotional needs of their daughter would come first. In fact, their daughter’s needs would be front and center.
Interestingly, each actually got more than he/she had initially wanted in that each also received something of importance that the other had been holding. Mom received the possibility that their daughter would get the kind of close relationship with her daddy that she, the child, had longed for. Dad received a coach in the form of the child’s therapist to make sure he remained mindful of his daughter’s needs.
This is a shining example of a win-win result. Notice how creative the resolution was and how far afield it fell from anything a court would have ordered had the case gone to trial. The gavel would have fallen and the result would have felt arbitrary to both parties. Even if one [most likely the mother in this case] had “won,” it still wouldn’t have felt good for very long because the deeper issues would have been neither touched nor resolved. There would have been resentment on the part of the “losing” party, which would have complicated their relationship going forward.
Let’s stay with this case a bit longer because it represents one of the very few happy endings in the relocation context that I’ve encountered in almost 20 years of practice. Relocation tends to be win-lose by its very nature because the child either stays or goes. Thus, it’s unusual to reach negotiated settlements that both parents can embrace fully. This case, however, proves that such a result is possible.
A couple of years after the divorce was final, the mother wanted to move to San Diego. She was in a new relationship, engaged to a man she purported to love very much. My client had met the man and thought him both stable and likeable. He just had concerns about being away from his daughter.
The law in Arizona at the time, unlike that in Washington now, permitted a non-residential parent to prevent a residential parent from relocating unless the residential parent could prove to the court’s satisfaction that the move was in the child’s best interest. Proving that a child would benefit when taken from the only daddy she would ever have was an almost-always losing proposition. In other words, the father almost certainly could have vetoed the move. Had the case originally been litigated, dad would have become an every-other-weekend father and, when mom wanted to leave, he would have stopped it. When practicing in Arizona, I witnessed broken engagements and relationships ended entirely because a non-custodial parent would not agree to a relocation. In this case too, it wasn’t clear there was a way forward. But since the divorce had been so successfully resolved through interest-based negotiations, the parties agreed to return for more.
The child’s therapist came to the settlement meeting to offer his insights. His involvement turned out to be crucial as he was able to keep the focus on the child’s needs. The mother spoke of the beautiful home in which they would live, the school she would attend, the neighborhood and its resources, and also her opportunity to further her own career. She spoke also of her desire to remarry. The father, after careful deliberation, chose to agree to the move. He said something along the lines of, “You didn’t roll over me when you could have. I want to reciprocate by recognizing that this could actually be great for our daughter. I will rearrange my life so that I can follow you.”
He spoke of how, with their daughter in school, he felt ready to transition to something new. He could see the advantages for their daughter and didn’t want to prevent his ex-wife from getting remarried. He expressed his appreciation for what she had done for him as well as gratitude for the opportunity to return the favor.
In those days, there were cheap shuttle flights between Tucson and San Diego. It was agreed he would visit every weekend he could make himself available until he could follow. His work, though intense, could be conducted in a mostly remote manner. We took a short break so the mother could make a quick call to her fiancée. She then agreed to let the father stay in the guest room of her new husband’s home. She also offered to let him keep a car at their home until he had a place of his own.
For the next several years, I received an annual Christmas card from my client. He had managed to follow the mother to San Diego. Each year, he told me of how they had celebrated Thanksgiving and Christmas together. He reported on the joyousness of those occasions. One of the cards said something along the lines of, “Our daughter has a mom and two dads.” The client expressed gratitude for the help of each of the professionals (by which he meant the child therapist and both attorneys). Consider for a moment the possibility that a client could see both counsel as allies to both parties.
As an attorney, the satisfaction of receiving a card like that is way more compelling in my view than even the biggest courtroom “win.” Following a big litigated triumph, my ego might feel good for about twenty minutes. Then I would notice how hungry I was plus the pile of mail sitting on my desk and all the calls that had to be returned. I might enjoy thinking about the case from time to time for another day or two and maybe telling a few people who were kind enough to listen. But that’s about as far as the satisfaction went. And of course one doesn’t always win. I found it really hard to face my own disappointment on behalf of clients who didn’t obtain favorable results, let alone theirs.
It’s particularly interesting to contrast the challenges of dealing with former clients in the litigation context, who are so often unhappy, with the typical experience of dealing with former clients after a successful win-win resolution. I’m the same guy who used to get his share of disgruntled clients and the occasional bar complaint as a litigator. Now it’s very rare for clients to express anything but appreciation. Clients often comment that they selected me because of the many positive online reviews they’ve read. Nothing about my character has changed. Only the focus of my practice. And it of course goes without saying that this type of practice is so much more personally rewarding. It truly helps people and knowing that one is making a positive difference in the world feels great.
I’m told there is well corroborated research showing that personal satisfaction, once one has adequate resources to pay basic living expenses, rises far less with additional income than with one’s sense of meaning and purpose. I can attest to the anecdotal reality of such findings in my life.