The Creative Solution: “The Perfect Mediation”

The Creative Solution Table of Contents

Summary:

This chapter from Chip Rose’s “The Perfect Mediation” recounts a successful mediation between divorcing parents. Rose, a highly experienced mediator, describes the strategies employed by the attorneys and himself to achieve a mutually agreeable outcome, emphasizing the attorneys’ collaboration and the clients’ desire for control. He contrasts the subjective nature of “perfect mediation” with objective measures of perfection, highlighting the importance of skillful professionals and a client-centered approach. The text also provides biographical information on Rose, showcasing his extensive experience and expertise in mediation and collaborative dispute resolution. Ultimately, the narrative illustrates a case study in effective mediation, achieved through careful planning, skilled facilitation, and the collaborative spirit of all involved parties.

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Chapter 8: “The Perfect Mediation”

What sometimes seems like a lifetime ago, our intrepid Editor in Chief, Don Saposnek and I conspired to make one in the series of humorous mediation tapes called “The Perfect Mediation”. Channeling Buster Keaton in our beyond-low-budget production, I played the mediator role. The fact that there was not a word of dialogue for the mediator played no part in that casting decision whatsoever, I assured myself. The basic gag was the clients turning their position taking to problem solving one step ahead of the intended intervention of the mediator.

I was reminded of the conceptual effort that went into the creation and production of that video in a two-day mediation that was scheduled by the attorneys for the clients and which took place immediately prior to my family vacation. There is measurable perfection—in baseball it occurs when no player from the team on offense makes to first base safely in nine innings of outs; and, there is subjective perfection—ballet is built on the aspiration of the dancer attaining perfection with the recognition that it will never happen. The idea of a perfect mediation clearly falls into the latter subjective category as the experience of it by each individual client, each individual professional, and the mediator may vary significantly. The editorial license that comes with being a columnist allows me to examine the idea of a perfect mediation from the perspective of the mediator.

One of the attorneys was well known to me, had participated in numbers of mediation sessions with me, knew my approach to the process, and had even taken some abbreviated mediation training. Having grown up professionally as an assistant district attorney, however, she remained contentedly camped at the evaluative end of the intervention spectrum. The other attorney was from a neighboring jurisdiction whom I had never met before and so I took the opportunity to get mutually acquainted in a presession phone call. Before becoming a family law attorney, her experience had been in an area of law that was not particularly adversarial and she indicated that she very much believed in the benefits of a collaborative approach. With a court hearing set for a week later, the mediation was taking place under the shadow of the courthouse. Aside from their relationship as lawyers for their divorcing clients, the two women had not ever worked with one another before. The issues that the pending hearing were going to adjudicate were predominantly having to deal with “custody” – which I put in quotes because the way the issues were framed from the primary custodial parent’s perspective, “co-parenting” was not an appropriate description of their relationship.

The first indication of parallel nature of each attorney’s strategic plan for success was the agreement to use the shorter first day session to address all the financial areas that were seen as non-issues. The attorneys had not previously agreed to this approach so their mutual decision to go down this path was the first evidence that they each did in fact strategize for success and that success depended on mutually agreeable outcomes by their clients. What mediator doesn’t experience an internal smile when the participating counsels reach out to collaborate at the first instance? Good start I said to myself.

With parenting issues as the core of the case and each parent entrenched in the logic of his or her mutually exclusive positions, the case had all the hallmarks of an impasse that is destined to have a date with the judge. A case involving a primary parent mother who wants nothing more than for her elementary school child to be safe and protected and a dad whose contact is reasonably described as visitation but who wants to teach his son the lessons that life has taught him can be very contentious and difficult to work with. What made this case different was the skilled and professional role that each of their lawyers played and the respect each paid to the other by understanding the challenges each faced in getting their respective clients to move off their positions.

The particular elements that aggregated into the foundation of an agreement
were diverse. First and foremost was the skill and willingness to collaborate of the two attorneys. Second, the fact that there was an impending court hearing within a week and the reality check the clients were given as to the unpredictable nature of that outcome played a significant role. Said differently, the clients wanted to retain control over the concessions each had to make more than they felt confident that their positions would survive judicial determination. Third, through both joint and caucus sessions (caucusing primarily at the request of the mother), the clients felt safer than they knew they would in court and the professionals took advantage of the opportunity to stretch their views of parenting helping educate them about the evolutionary nature of their son’s development and parenting needs. Fourth, the caucus format allowed for more intimate conversations that made it safe for the mother to relax some of the more stringent conditions she insisted on imposing at the outset of the sessions. Finally, the use of a very tried-and-true mediation approach to agreement-making was employed. I have described that as making agreements that are big enough to solve a problem and small enough so as not to create new problems. In this case the agreement contemplated a succession of stages. The first would be implemented in a way that was shorter than the Dad wanted but longer than the Mom wanted with the understanding that their parenting arrangement would be revisited to assess how things went at the end of the first cycle.

At the end of the second day, the clients signed the Memorandum of Understanding, initialed the calendar upon which they had marked the visitation schedule, and confirmed the arrangements for who was providing meals on the days of transition. When the clients had departed to go pick up their son, the three professionals looked at one another and collectively wished that all our cases could be handled so creatively and professionally. It was as close to perfection as they get.

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