At the April 15, 2006 SGV CAMFT meeting, I had the pleasure and privilege of making a presentation, which consisted mainly of role-playing by the therapists in attendance, to experience two basic approaches to divorce mediation: Facilitative Mediation [Interest-Based] and Evaluative Mediation [Position-Based] . This article is intended to elaborate on that subject.

In Evaluative Mediation [Position-Based], each spouse starts with a position on the issue in question, and attempts to "win" the mediation by convincing the mediator of the strength of his/her case, and through the mediator, convincing the spouse. Most of the mediator's time is spent in "caucus" [meetings in a separate room with first one, and then the other spouse]. The mediator's goal is to get an agreement.

The mediator is free to evaluate the case, and try to move the spouses' positions together to reach a compromise. The mediator may decide to meet first in caucus with the husband. The mediator will attempt to convince the husband that his case is weak and his wife's case is strong. The mediator will then meet in caucus with the wife, and argue the contrary. In this way, the spouses are moved toward a middle position, which they can agree on.

In the open sessions of the Evaluative mediation, the mediator will sit between the parties, who face each other, as shown in the below Evaluative Mediation diagram. The parties direct their positions and arguments to the Mediator, and the Mediator evaluates. Direct communication between the parties is discouraged.

In the Facilitative Mediation, the spouses sit side-by-side, facing a flip chart for listing of their respective interests [the good things] in the issue under discussion. The spouses are asked to refrain from stating any position. Instead, they are encouraged to list all of their interests in the issue. For example, the wife, rather than stating her position [that she must get the family home, or at least get to live in it until the kids graduate from high school], instead states her interests in that result.

The wife's interests in keeping the family home may include the following: (1) she likes the location because the neighborhood is safe and the neighbors are friendly; (2) she wants to keep her garden that she has worked on for years; (3) it is an excellent school district; (4) the kids have good friends at their school; (5) it is important for the stability of the children to be able to live in the same house they have always known as their home.

The husband may find that he shares some of these interests, such as keeping the kids in the same school, or at least in the same school district. But he may propose that moving to a smaller house in the same neighborhood would serve those interests just as well. Selling the house would permit both to buy smaller, but nice, residences in the same neighborhood. His having a good residence will serve the mutual interest of the spouses that the kids have a nice place to stay in their "other home," during their visitation days with husband.

In Facilitative Mediation, the Mediator does not evaluate or state his/her opinion, but instead facilitates the spouses talking to each other about the interests, so they can move toward agreement on the issues.

Sometimes the Facilitative Mediator, and usually the Evaluative Mediator will make use of a favorite tool of mediators, the BATNA [Best Alternative to Negotiated Agreement].

The mediator may point out that the "BATNA" [Best Alternative to Negotiated Agreement] facing divorcing spouses is an undesirable one, i.e., going to divorce court [family court]. In divorce court, the issues are ultimately decided not by the spouses, as in mediation, but by a third party, namely the judge.

The mediator may point out that the judge can be expected to have a heavy case load, and will have little time to spend on their issues. At a hearing, the spouses may get 15 minutes of court time, and frequently less than that. Surface impressions, varying abilities of counsel, any biases the judge may have, the judge's temperament at the moment, and the routinizing that is bound to occur with handling a large number of similar cases, may be factors. Unless the spouses sign a settlement agreement, usually in a hurried conference with a volunteer attorney acting as a settlement officer, and under the pressure of trial, all matters in dispute will be decided by the judge, not the spouses. Generally, the judge has broad discretion, so that appeal of the decisions is unlikely to have much chance of success.

Facing this BATNA, the parties are encouraged to try to reach an agreement in the mediation. For further information on the unattractiveness of the divorce court BATNA. please see my articles "Nice People at Their Worst: Divorce Litigation and How to Avoid It" and "Why You Won't Get Even in Divorce Court," included in this website.

For more on Facilitative Mediation divorce, see my article "Peeling the Orange: Negotiations for an Amicable Divorce," also included in this website.   Interest-based negotiation was developed by the Harvard Project on Negotiation and popularized in the 1981 best-selling book [which is still in print and well worth reading] Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher and William Ury, Penguin Books.

Using the Interest-based model developed by the Harvard Project, the facilitative mediator is able to help the divorcing spouses to produce what the Harvard Project calls a "wise agreement," i.e., a Marital Settlement Agreement which resolves all the issues with a minimum of cost, delay, and rancor, and with a much better chance of keeping an amicable relationship for future cooperation.

 

Copyright © 2006 B. Daniel Lynch. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution.