The Creative Solution Table of Contents
Summary:
This chapter by Chip Rose, an experienced divorce mediator, advocates for a two-phase mediation process involving an exploratory phase followed by caucus-based negotiations. Rose emphasizes the ethical responsibility of ensuring client understanding and capacity before negotiations begin. He highlights the benefits of caucus sessions, allowing clients to independently formulate proposals while considering their own interests and those of the opposing party. Rose’s approach prioritizes managing the process rather than dictating the outcome, maintaining neutrality while guiding clients toward a mutually beneficial agreement.
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In a couple of conversations I have had with APFM colleagues this past year, it was clear that my approach to the negotiation phase of the process was distinctly different than theirs. The first conversation was with Steve Abel, a past president and a most experienced mediator, and the other was with Michael Aurit who is just embarking on what will no doubt be a very successful mediation career. In each conversation, it was suggested that I write up an article about it and since the latter of the two was just a week ago, I thought I would make it the focus of this column.
In my conversation with Michael, the discussion turned from the comparative differences between the process approaches from my model compared to all the training he had experienced, to the ethical considerations that underpin the process. I stated that the threshold ethical consideration in any mediation begins with client capacity. Does the client have the capacity to reason, learn and fully participate in the process or is there some impairment or lack of capacity that would be a barrier to that level of participation? For the sake of the focus of this column, we shall assume client capacity. It is also important to note that my practice is almost exclusively with unrepresented clients and always has been.
For me, the next level of ethical responsibility in facilitating the client’s process is to ensure that prior to negotiating an agreement: the client has been provided all relevant information affecting the choice or decision; that all options for resolving the issue have been presented; that the consequences of each option have been analyzed and are understood by the client; and that in choosing one option over another, the client has the capacity to consider the value of one outcome over another by assessing the value of what was gained measured against the value of what may have been given up.
I have anchored my process with a two phase framework consisting of an exploratory or preparation phase, followed by a negotiation phase. The distinction between the two is to avoid the Achilles heel of most “kitchen table” conversations which is the clients failing to distinguish between exploratory conversations and the actual making of a deal. Typically, one of the parties will throw out his or her idea relative to a major issue and the other party enthusiastically rejects it because it threatens that person’s idea of a successful outcome. Then the conversation goes downhill from there.
What distinguished the approach I use from that employed by my two colleagues is the fact that I give the clients the option to work on their individual proposals for a comprehensive settlement in a caucus session with me. I do not mandate that they use this approach. On the contrary, I remind clients that they have the choice of working together on their own, working with me in joint session, or working with me in caucus. That said, it is also true that most clients do not know how to create a comprehensive settlement proposal. What I have observed is that the process of making this kind of settlement proposal is as much a journey of discovery through competing values and outcome objectives for the client making the proposal as it is for the client responding to the proposal. The experience is fundamentally a subjective one for each client and the caucus format creates the space for each of them to “talk out loud, think out loud, muse out loud” without interference from the person who is on the other end of those same interests.
For example, imagine a case with a wife who has stayed at home raising three children and is now having to consider the financial aspects of the settlement, including the amount of support on which she will be dependent pending her return to the employment workforce. Given the choice, in excess of 90% of my clients choose to work in caucus to consider these types of negotiating possibilities:
• A wife wanting to assess what she might have to trade to secure sole ownership of the family residence (assuming that such an outcome is possible);
• The contemplation her need for support and/or the possibility that she may offer some limits on future support in trade for her husband’s willingness to stay on the loan (without which cooperation the house will have to be sold);
• Assessing whether she should consider trading any of her equity in his 401(k) (a pre-tax asset) for any of his equity in the house (a posttax asset);
• A husband considering deferring the reduction in his support obligation that would come with his wife re-entering the work force (e.g under the rules of the Family Code) for a set period of time in trade for her reducing any entitlement she would have in his annual bonus income.
The experience clients have contemplating the trades that have to be considered in almost every case is personal and subjective to each client. Before they can consider the role that the other client’s interests play in their formulation of an offer, they must first consider the competition between the client’s own interests. Having a quiet, contemplative, constructive, responsive environment within which to do this work gives clients the opportunity to produce thoughtful, creative and targeted proposals. The more thorough the proposal, the greater the likelihood that the most important interests of the proponent are being revealed. This in turn gives the person making the counterproposal the ability to make a more targeted response. The typical outcome is that the clients achieve a settlement that maximizes the division of their resources efficiently and cost-effectively.
By way of a kind of disclaimer, I should note that mediator “neutrality” is maintained by my commitment to assist them in their negotiation. I do not recommend what I think should be their outcome. I do help remind them of what the other party has shown their interests to be as disclosed in the conversations that took place in the first phase of the process. Said differently, I don’t manage their settlement. I manage their process of achieving a settlement.
The Creative Solution Table of Contents
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