Mediating Divorce Agreement

Attraction and Resistance to Agreement
Somewhat paradoxically, participants come to mediation both wanting agreement and resisting agreement. How do we know that participants want to reach agreement? In that mediation is a voluntary process (under existing circumstances), we can presume that participants have considered the alternatives and made an informed choice to participate in mediation. This is not to say that mediation is an idyllic choice. Few, if any, people desire to be in mediation. Mediation is kind of like going to the dentist. Few, if any, people desire to go to the dentist. Yet, if you have a bad enough toothache, you will drive many miles on a sunny Sunday afternoon to find a dentist who can help you. Mediation is somewhat similar. Under the difficult circumstances of being at odds with another with regard to a critical area of life experience, an increasing number of people recognize that mediation is the best place for them to be, and the sooner the better.

We know then that participants voluntarily come to mediation because, under difficult circumstances, they "want" to be there. Why do they want to be there? They want to be there because mediation offers them the opportunity to receive assistance to reach agreement. It may thus be said that we know that participants in mediation are attracted to reaching agreement because they are there. The voluntariness of the mediation process ensures this.

Somewhat paradoxically, we also know that participants in mediation are resistant to reaching agreement. How do we know this? It is the same answer: because they are there! If each party did not have some form of resistance -- some experience or set of experiences that they need to have to reach agreement and have not yet had -- they would, presumably, be at agreement. Participants in mediation are thus both attracted to reaching agreement and have resistance to reaching agreement. They need to receive some satisfaction or set of satisfactions in mediation to be willing to give up their resistance.

For some participants, this needed satisfaction experience may involve clearly communicating certain information to the other party(ies); or it may involve the other party(ies) acknowledging certain perspectives or feelings; or it may be the need to comprehensively consider all possible resolution options; or it may involve consulting with experts or an advisory attorney; or it may be all of these things! If participants in mediation did not have some resistance to reaching agreement, some unsatisfied need or set of needs, then they would be at agreement!

Mediating parties thus come to mediation both attracted to agreement and, paradoxically, resisting agreement! These basic energy forces, the attraction or "lean forward," and the resistance or "lean backward," are critical for the mediator to recognize, define, manage and address.

A good part of mediation thus involves clarifying what participants want (addressing their attraction to agreement) and how they will know that it is alright to agree (addressing their resistance to agreement).

The Outcome Question
In response to the parties' intrinsic attraction to agreement, the primary question for the mediator to ask may be called an outcome question. A simplistic example of an outcome question is: "What you want?" Any question that asks parties for information as to the experiential results that they would like to create, either through their mediation process or through the substantive terms of their agreement, may appropriately be called an outcome question. Examples of outcomes questions follow:

"What would you like to achieve through the mediation process?"
"Why are you here?"
"What results do you want?"
"How would you like it to be?"
"How do you see these issues being best resolved?"

The Evidence Question
In response to the parties' intrinsic resistance to agreement, the primary question for the mediator to ask may be called an evidence question. A simplistic example of an evidence question is: "How will you know that it is alright to agree?" Any question that asks participants for information about the experience(s) that they will need to have to be willing to agree (give up their resistance) may appropriately be called an evidence question. Additional examples of evidence questions follow:

"How will we know that we have the best possible agreement?"
"How will you know that the agreement is fair?"
"On what basis would you be prepared to agree?"
"What will you need to experience to be willing to agree?"

Ask Outcome and Evidence Questions at all Levels of Generality/Specificity
Outcome and evidence questions can and should be asked at all levels of generality/specificity. In a complex mediation, the mediator may ask a hundred or more outcome and evidence questions. One of the nice things about outcome and evidence questions is that they are appropriate and effective ways out of the mediator being "stuck." The mediator can rub his or her chin (looking wise) and ask: "Help me again, specifically what were you wanting to achieve here?" or "How was it again that you would know that we had a good agreement here?"

It may be helpful to think of outcome and evidence questions at three levels of generality/specificity. The first level, having to do with the parties' overall interest in and resistance to agreement, may be called the global level. Thus, the mediator may begin the mediation by asking: "Help me understand. Why are you here?" or "About the only thing that I know about people who come to mediation is that they would like to reach some kind of agreement. What type of agreement would you like to reach? What will it do for you?" The parties answers to these most general inquiries about their participation in mediation and their overall agreement may be called global outcome statements. As we shall see, remembering these global outcome statements can be very helpful to the mediator down the line, especially to screen out non-productive behavior and to assist the parties to get back on track.

Similarly, the mediator is encouraged to ask parties global evidence questions, such as: "How will you know then that it is a good decision to come to agreement?" or "Understanding then the type of agreement that you would like to create, how will you know that it is actually alright to agree? What will your process be for making that decision?" Notice that parties responses to these type of evidence inquiries will vary dramatically. Some parties will say "it will feel right." Others may say that "it is fair" or "my attorney will tell me that it is alright to agree." Still others may say that "he will finally get how serious I am about this" or "she will understand that I am no pushover." Often such global evidence statements (what the person perceives them self needing to experience to be willing to agree) will be followed by a specifying or clarifying question such as: "How will you know that the agreement is fair" or "how will you know that he takes you seriously." The goal here is to assist parties to define the specific experience that they perceive them self needing to have to be willing to agree.

With this definition of the evidence (or experience(s)) the party perceives them self needing to have to be willing to agree, the mediator now understands, and has helped the parties to understand, how they will be making their ultimate decision about the acceptability of any agreement in mediation. This is absolutely critical information. These stated standards help to guide the mediator in how the mediator communicates with participants, e.g., "Does this option feel better" or "Do you perceive yourself as being taken seriously now?" Global evidence statements also help to guide the mediator's overall facilitation. For example, if the mediator knows that a party will be deciding based upon an attorney or other non-present third-party's opinion, then the mediator will want to do everything he or she can to assist the party in assembling the best possible information for that third-party's consideration. The mediator may even want to help to facilitate those discussions. Knowing how participants will ultimately be making their decisions on the acceptability of any agreement is thus a critical set of information that helps guide the mediator's facilitation.

Outcome and evidence questions can also be beneficially asked with regard to each Topic (agenda item) up for discussion and also with regard to virtually any and all Issues and Subissues that emerge. Again, it is almost always appropriate and desirable for the mediator to ask: "On this [topic] [issue] [subissue], what would you like to create" and "On this [topic] [issue] [subissue], how will you know that it is alright to agree?"

An example of a topical outcome question might be: "On this issue of financial management, what would you like to create?" An example of an issue outcome question might be: "With regard to the type of bank accounts that should be maintained, what are your thoughts?" An example of a subissue outcome question might be: "With regard to the number of needed signatures to cash in a certificate of deposit, how would you like to do that?" In each case, the mediator is simply asking the basic outcome question: "what do you want?" This basic question can be asked hundreds of different ways and with regard to any level of generality/specificity.

Similarly, a topical evidence question might be: "On the issue of spousal support, how will you know that we have a good agreement?" An example of an issue evidence question might be: "With regard to the issue of review and modifiability of spousal support, how will you be deciding that?" An example of a subissue evidence question might be: "With regard to the actual payment of spousal support, be that by withholding, wire transfer, direct deposit or direct transfer, what are your criteria for making that decision?" In each case, the mediator is simply asking the basic evidence question: "how will you know that it is alright to agree?"

The responses that the mediator gets to an inquiry such as "Why are you here?" or "What would you like to accomplish through your Agreement?" or "What results would you like to create?" (all global outcome questions) lead, logically, to responsive global outcome statements from participants. For example, one party may say: "Well, what I would like to create is an atmosphere of respect and trust, be sure that I am being paid at least the prevailing wage for my type of work, and also get dental coverage." The other party may say that: "I would like to be sure that productivity stays high, that we are not paying any more that our competitors for comparable work, and I would like to get medical and dental costs under control." Simply repeating these global outcome statements back to the parties is a facilitative technique almost certainly guaranteed to increase the parties trust in and rapport with the mediator. Participants like to hear the mediator repeat back an effective rendition (often somewhat generalized) of what they said they want If nothing else, this convinces participants that the mediator knows how to listen.

Cumulating Outcome Statements
As mediators, we learn to appreciate and be satisfied with "baby steps" or incremental movement toward agreement. Cumulating parties' respective outcome statements is one such incremental step toward assisting the parties to reach agreement. All we are doing here is combining the parties' respective outcome statements about why they are in mediation, such as the following: "What I am hearing then is that we are here to do the following. For you John, I understand that we are seeking to create is an atmosphere of respect and trust, trying to make sure that you are being paid at least the prevailing wage, and also that we would explore trying to get you dental coverage. For you Martha, I understand that we will be aiming to keep productivity high, try to make sure that you are not paying more than a reasonable wage, and doing our best to get medical and dental costs under control. Am I correct about all of that?" As you are merely repeating back, slightly generalized, what you have heard from the parties, you are almost guaranteed to get a solid nod "yes" from each of the parties (gaining trust and rapport). Less obvious is that you are also getting the parties to, often for the first time, affirmatively acknowledge that the mediation will be seeking to satisfy each of their desired outcomes (not just one of their desired outcomes). This induced ability of the parties to consider not only their desires but also the perspective of another is also our first example of a meta frame, a concept that we will be considering further down the line.

The Conditional Close
The conditional close is an affirmative statement of all conditions necessary for agreement and the first comprehensive blueprint for the parties' success in mediation. The conditional close is an extension of the parties' cumulative outcome statements that asks the parties to acknowledge, if only unconsciously, that each party may not get all that they ideally want in the mediation and that they may each need to be somewhat flexible, in a principled way, if comprehensive agreement is to be reached. For example, following the asking of global outcome and evidence questions to Martha and John, the following conditional close statement might be offered:

"It seems then that we will have agreement if we can, for you John, create an atmosphere of respect and trust, make sure that you are being paid at least the prevailing wage, and get you dental coverage -- and for you Martha, if we can ensure that productivity will stay high, be sure that we are not paying more than a reasonable wage, and do our best to get medical and dental costs under control. And, if we can't do all of these things perfectly, then it would seem that we would only have agreement if each of you was convinced that the necessary flexibility to reach agreement was shared in some way that each of you perceive to be reasonable and fair. Am I correct about this?

The difference between cumulated outcome statements and the conditional close is that, with the conditional close, we are asking the parties to go beyond appreciating that the other party also has desires that need to be addressed to agree that, if we cannot perfectly satisfy each party's desires, there will have to be movement on both sides, and that any such movement will only be made if both parties believe that the requested movement is reasonable and balanced under the circumstances.

The Reference Point Process

The reference point process is the most interventionist that I will be as mediator. This process involves offering the parties a centralized concrete option for resolution. This option is determined based upon what the parties have said they want (their desired outcomes) and based upon how they know they will have a good agreement (their evidence standards). The reference point is not based upon what the mediator thinks is right or best and it is not a recommendation. Rather, it is a noticing of what may work for the parties. A reference point can be offered at any level of generality or specificity, from an overall possible settlement to a possible solution on the narrowest of issues. It will often make sense to caucus individually with parties following the offering of a reference point so that neither party has to move first and they can comfortably and fully consider the settlement possibility. If not acceptable, parties can be encouraged to massage or modify the settlement option in a way that will work for them. Based upon these changes, the mediator may want to issue one or more revised reference points for the parties' consideration.

Having heard from each of you as to what you would like to create and also what you perceive to be fair, I would like to offer the following as a reference point for your consideration, asking each of you, in caucus, to let me know if this would be acceptable and, if not, what changes to this possibility would make it acceptable. Note this is not my personal judgment as to what is best or fair. I have not even processed the information in that way. Rather, this is a possible resolution that may work given your expressed desired outcomes and standards. Here it is . . . "

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