The Creative Solution: The Best Interests of Children

The Creative Solution Table of Contents

Summary:

This excerpt from Chip Rose’s “The Creative Solution” focuses on maximizing the best interests of children in divorce mediation. Rose argues that achieving optimal outcomes requires a shift from adversarial litigation to collaborative, interest-based negotiation. He emphasizes the importance of client commitment, mindful process design, and recognizing individual perspectives. The text further highlights the limitations of court-ordered solutions and proposes alternative approaches, such as shared professional resources and open communication, to foster healthy co-parenting. Finally, it offers practical advice and wisdom for mediators working with divorcing parents.

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Chapter 4: Best Interests of the Children

We all love our kids, don’t we?  Mostly we hear from our clients that their children are more important to them than anything else in the world.  Typically, there will be added emotional emphasis when this statement comes from the party who does not want the divorce and who wears this badge of love for the children as though it was a military battle ribbon and it was the fourth of July.  From a professional perspective, how wonderful it would be if this love-of-child emotion brought the couple in such alignment with one another that they shared a definition of what would be in the best interests of their child or children.  Then there is the real world.  So the challenge to professional family mediators is how to construct a process structure to which the clients will commit and how to maximize the opportunities for those parents to actualize decisions that are truly in the best interests of their children.

A first step is asking the clients if they even have as a goal achieving a maximized outcome (a contextual term I stole from Jim Melamed).  Given the reality that litigation is most likely to produce their worst possible outcome, it follows that at the other end of the continuum of possibilities, there must be a best outcome.  It is also true, like the sun coming up tomorrow, that a competitive negotiation based on zero-sum reasoning will only create the appearance of winning—if even it does that.  So the clients need a conversation about these kinds of macro goals if one is to avoid just rearranging the deck chairs on the Titanic, from a process perspective.  This is an issue of mindfulness.  Since the clients are ultimately accountable for the outcome, they need to be reminded that they will never actually achieve their most mutually-beneficial outcome accidently.  It can only be done strategically.

 A second critical element is their recognition and acceptance of the fact that they are two individual people with individual perspectives, individual belief systems, and individual outcome goals.  That they may share some of these things is mostly serendipitous but certainly nothing that is likely to pull them through the long haul of coparenting.  If they are willing to accept their differences (without necessarily liking them) and they have committed to work in the process in a manner that is consistent with their achieving maximized outcome, they are well on their way to developing a very effective process.  Part of the conversation at this stage of the process is an explanation of interest-based negotiation and the necessity of each party being able to freely express oneself coupled with the incredible opportunity this provides for the savvy listener to harvest all kinds of incredible information about how to negotiate with the speaker.  By contrast, the clients can compare the hide-the-ball approach to the development of information in the adversarial environment of the adjudicatory approach.  Clients might consider the procedural name the legal profession created for this phase of a court divorce—discovery—and all that that name implies (e.g. “If you don’t ask the right question, we are not obligated to give you the right answer”).

Then there is the default structure of any particular jurisdiction’s methodology for resolving parenting issues.  When clients tell me that they just want to know what their rights are, my response is to ask them in what other areas of their lives do they think the State of California has meaningful solutions to the problems they confront.  As with almost all aspects of divorce, the state will come up with some answers to legal questions that represent a kind of default.  It is important for clients to know these answers if they are to be fully informed, and if they are truly “fully informed” then there is very little chance that they would trust something as important as the future of their children to the court system.  That said, it is an option and needs to be discussed.  What will always be absent from an adjudicated outcome is the wide range of possible solutions to specific co-parenting problems that grow out of a flexible co-parenting relationship.  Because of the limitations of space, I will just make mention of the value of shared professional resources that the parents can employ in furtherance of their education regarding the developmental stages  for children of differing ages, including the wealth of experiences that parenting coordinators can contribute in suggesting solutions to the parenting problems of the clients.

Then there are the “oil-on-troubled-waters” pearls of experiential wisdom that I like to weave into the conversations with the clients:

• Reminding the clients that the sands in the hourglass of their parenting will run out way faster than they are ready for and they will spend most of their lives knowing their children when they are adults.  They might consider what they will hear from them about how all this went down.
  
• Reminding them that children can handle an infinite number of parenting relationships, if one defines a healthy parenting relationship as the combination of unconditional love and boundaries.  That said, there will only ever be one Mom and one Dad and that precious title is theirs to lose.  The moral is don’t freak out when a new step-parent comes onto the scene and just hope the other parent makes a good choice in partners.
  
• Finally, I like to ask this question in response to a particular unpleasant demonstration of polarizing dialogue regarding the parenting capability of either of the parties: “If the data from the mental health field makes it unequivocally clear that the single most harmful thing for children is the exposure to conflict between their parents, what would you be willing to do to give them a childhood free from that conflict?”

The micro view of “best interests” of the children is an expansive briar patch with thorns enough to cause all of us (mediators ablsoutely included) a great deal of pain. 

The macro view is to establish broad goals that incorporate the positive intentions of the parties and the critical connection between process design and client commitment.  Then there is an actual opportunity for the best interests of the children to be made manifest. 

The Creative Solution Table of Contents

Chip Rose

Chip Rose is highly experienced divorce mediator previously based in Santa Cruz, California and recently moved to Bend, Oregon. Chip founded The Mediation Center in Santa Cruz in 1980 and is certified as a Specialist in Family Law by the State Bar of California Board of Legal Specialization. In a client-centered… MORE