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Future of Conflict #14: A Guide To Divorce Mediation

This week I read A Guide To Divorce Mediation by Gary J. Friedman. It’s not scary. I promise. Reading this email will not lead to the end of your relationship… it may even do the opposite.

Gary Friedman is one of the people who “invented” divorce mediation in the 70’s, when lawyers started exploring how they could serve “both sides” in a divorce instead of pitting the people against one another.

He had done over divorce mediation 1,000 cases by the time he wrote the book, and has a lot street cred.

Most of the book is case studies that are really well done, full of dramatic and unreasonable quotes by the divorcing parties.

The four things I want to share with you today are:

  1. The Problem is Always Beneath The Problem
  2. How To Get People To Listen To You
  3. The Essential Elements of Successful Dialogue (whether it’s about divorce or anything else)
  4. A Sample Marital Dialogue Process (inspired by Gary’s book)

1. The Problem is Always Beneath The Problem

Gary writes:

Although most people who come to me for mediation usually have legal and economic matters uppermost in their minds, they eventually reach an agreement only by digging below the surface issues … to confront and change their relationship.

The significance of mediation as an alternative method of resolving conflict lies in the process of examining, clarifying, and adjusting human relationships in all their intricacy and emotional depth.

I’m used to making the following claim:

The problems you came in with are symptoms of problems below them.

Which means you have to use questions to figure out what’s really at stake.

Gary’s claim is a bit stronger:

You can’t solve the problems you came in with until something shifts in the problems below them.

For Gary, it’s not just an intellectual or spiritual interest (“it’d be nice to get deeper”) in solving those deeper problems — they are the reasons why people can’t agree on custody or child support (or who takes out the trash).

The way to do this is to structure a conversation that:

cuts through stances of posturing, threatening, cajoling, and blaming to the underlying issues of disappointment, pain, hope, aspiration, and fairness

Ideally, the result for both participants is a deeper understanding of themselves and the other, and of the fundamental human relationship between them.

Takeaway: When you’re stuck on a problem, it’s probably because there’s another problem — a deeper problem — you haven’t yet addressed.

2. How To Get People To Listen To You

Many of these books on conflict resolution have the same insights presented in different ways. And yet, this same “core group” of insights are so hard for most of to manage that I find it beneficial to read about them every week.

I was first exposed to this concept through NVC (#UncleMarshal).

Sometimes, in order for the other person to really listen to you, they have to feel really heard.

That is, we may not be able to listen until we feel heard.

Obviously, if both people are at that point, you’re hosed and have to wait until somebody downshifts on their own. Or get a mediator.

But if one person (usually the person reading this newsletter) can remember this, there is a way out.

Here’s an example from Gary’s book:

Nick and Marie are in a divorce mediation process. Marie wants the divorce because she has been powerless for years and feels like she can’t make own decisions until she leaves the relationship. Nick is totally blindsided, enjoys their dynamic, and angry she wants to leave.

Nick has no trouble articulating his view point and making ultimatums:

I won’t pay any spousal support, and that’s it. And I don’t care what the law is, either. She can go to court and get a judge to order me to pay spousal support, and I won’t even hire a lawyer. I’d rather go to jail than pay spousal support.

Marie can’t even answer questions about what she wants, because she can’t imagine Nick not getting his way in their relationship.

The mediator clear has to help Marie articulate what she wants, but he also has to create the conditions in which Nick could hear Marie.

Gary writes:

Helping Nick see Marie’s point of view would mean empathizing with him, trying to understand how it felt to be so desperate, so pained by the end of the marriage, that I would feel forced to take this extreme position. I had to try to get closer to his many fears, his uncertainty, and his sense that he lacked control over his own destiny. If I could do that, it was possible Nick would become more interested in the power of understanding than the force of coercion.

Here’s the recipe, behind what Gary wants to do:

  1. Ask for their experience
  2. Listen
  3. Restate your understanding of their experience (sayback)
  4. Get confirmation or feedback (“Am I understanding your experience?”)
  5. Ask for more (“Is there anything else I should know?”)

… which then restarts the process. This would continue until the person feels complete, at which point they may be open to hearing your experience.

There’s two things you should notice here:

  1. This is a pain in the ass.
  2. This is very different than saying “I understand”.

The theory is that people blab on endlessly because they don’t feel understood. Saying “I understand you completely” does not help people feel understood. Instead, we should say things so that they end up saying “You understand me completely.”

In mediation, the mediator can do this pain-in-the-ass process for you. But in a conversation, one of you might have to do it.

3. The Essential Elements of Successful Dialogue

Here are the four elements that occur to me right now, influenced by Gary but also by everything else I’ve learned:

  1. Shared Process
  2. Shared Goals
  3. Shared Problems
  4. Shared Solutions

The mindset necessary for this entire process (according to Gary) is:

  1. Self-responsibility
  2. The willingness to disagree
  3. The willingness to agree

That basically means that each party acknowledges Their Power over Their Future. They can make an impact on their future, and they can make that impact by stating their own desires, regardless of whether the other person agrees or disagrees with their desires.

To share my understanding of the four steps, I will introduce a trivial example to play with: “Whose job is it to take out the trash?”

1. Shared Process

The first step is to co-create the process. Both parties have to be active creators and agents in the process. That means they have to agree about the guardrails: How is it going to happen? What is the order of events? How will decisions be made? What is going to happen when things break down?

In this case, a shared process could look like:

  • We set a time window for our conversation that is convenient to everybody.
    • Good Example: “When can we talk about the trash thing?”
    • Bad Example: “Why didn’t you take out the trash this morning?”
  • We have agreements about how we will talk to each other, and what we will do if we are unable to follow those agreements.

Shared Goals

Most conflicts start because there is a difference of opinions or behavior. They start with something that is not shared, which sets up the parties on opposite sides.

Me vs. You.

To solve the problem, we have to rearrange the room so we’re both on the same side of something.

That something is clearly not going to be the original problem, so it’s probably going to be something upstream.

In this case, “You taking out the trash” is not a shared goal. But the shared goal might be: “It’s clear who is taking out the trash” or “The house is free of rats and bad smells” or “Our children have a stable environment to grow”.

The deeper the conflict, the more remote the shared goal might be. That’s okay!

It’s an anchor to help us make decisions together by asking: “Does this solution satisfy our shared goal?”

Shared Problems

Once you have a shared goal, then anything between you and that shared goal becomes a shared problem.

My problem is no longer you or your behavior, and I can’t continue to think that the trash is “your problem”. It’s our problem.

Let’s say our Shared Goal is “The house is free of rats and bad smells.”

Then the Shared Problem is “How do we handle trash and recycling?”

This is obviously with trash.

But let’s say you’re in a relationship with lots of small communication bumps and upsets (like most relationships) but there’s a huge difference in how you perceive these bumps.

You’re coming from a place of general satisfaction in the family dyanmic and commitment to the relationship. You’re interested in working through things and also able to “forget” some small inconveniences.

Your partner, it turns out, is in a very different position, and just told you they have already mentally disengaged. They want to explore options of leaving the relationship.

You still might have some strong shared goals: “Experience a fulfilling romantic partnership while providing a safe nurturing space for the kids and pets”. Those goals aren’t being met right now, for at least one of you.

However, you might not be aware of each others’s problems — the problems you unknowingly share. So this phase is an opportunity to understand all of the problems you share.

Shared Solutions

This is the part we all want to come and solve immediately.

“Fine, I’ll take it out”
“Can we alternate weeks?”
“Why don’t you leave for work 10 minutes later so you have time to…?”

But without the previous steps, this is just haggling. There is no framework to decide which solution is best or what “fair” means for each person.

Are you willing to consider an open relationship or taking on trash duties or talking to me differently?

Why would you consider any of those strategies without knowing how they would affect each person’s goals and your deeper shared project?

People come to conflict looking for solutions. If they’re calm enough, they can realize those solutions have to be co-created (force leads to unstable equilibria). But the solutions only make sense when the problem is carefully specified. That’s the job of the first three steps.

4. A Sample Marital Dialogue Process (inspired by Gary’s book)

Here’s a translation of the last point into a a sample (and simple) marital dialogue process. This could be used when you have something serious to talk about, or just preventively or for the purpose of alignment, maybe around your anniversary or something.

Beforehand…

  1. Invite the sweetheart:
    1. “Hey sweetheart, I’d love to put some time aside where we can focus on improving our marriage through better understanding each other’s experiences. I’m imagining something reflective and collaborative that could change the way we end up relating to ourselves and each other.”
  2. Schedule the time.
    1. I think 3 hours is a good amount of time.
    2. No kids, no phones.
    3. Bonus points for being in a relaxed, uncluttered space or someplace with a beautiful and/or inspiring view.
  3. Share a 1st draft of the agenda:
    1. Opening
    2. How we want to communicate (Process)
    3. What we want (Goals)
    4. What’s alive for us? (Problems)
    5. Discussion (Solutions)
    6. What do we want to remember? (Commitments)
    7. Closing

During…

Assuming you use an agenda like what I shared above…

1. Opening

This is an opportunity to add a ritual element. Maybe it’s a statement of gratitude, a declaration of love, or reading your vows from some previous commitment ceremony.

Maybe you’re not in a position to do any of that!

2. How we want to communicate (Agreements)

One organic way to come up with agreements is to ask “What are our concerns?”, and then come up with agreements in response to those concerns.

For example, if one person has a concern about being talked over, you can make agreements around interruptions or adopt the use of a talking piece (like a stick, egg shaker, or feather boa).

In my mind, agreements only make sense when it’s clear what happens when the agreement is broken. That’s because they’re going to get broken all the time (and that’s okay). The parties just need to know what they would like to do in that situation.

This might be “60 seconds of silence” or “go back to curiosity” or whatever else works for both of you. The key thing here is that both people are co-creating a conversation that works for them.

If you are unable to do this part, that in itself is important information.

This corresponds to Shared Process, above.

3. What we want (Goals)

This corresponds to Shared Goals, above, and is an inquiry into what each person is looking for. It might be what they are looking for from this conversation, from the relationship, or from their life in general.

I would recommend using “sayback”, as described above, until each party confirms that “Yes, you totally understood my point”. Only after that confirmation, I would encourage the other party to ask questions that lead to a deeper why, if necessary.

At the end of this phase, each party feels the other party has a crystal clear idea of their goals for how they want to feel in the relationship.

4. What’s alive for us? (Agenda)

The next step is to figure out what you want to take about. This is analogous to Shared Problems, above. You can use a piece of paper or flip chart, and take turns making suggestions. Maybe some of the suggestions overlap and could be consolidated.

At the end of this phase, you should have a clear idea of the issues standing between you and shared goals, as well as a coalescing understanding that none of these issues are “their” problem. They all have to be considered “our” problems if you’re going to make progress, together.

5. Discussion

This is where the magic of the previous steps might be seen. The key here is to have discussions (and talk about solutions) in the context of everything you’ve learned up to this point.

One key element of success here is focusing your suggestions on things you can do rather then on things they can do. You can avoid a lot of reactivity that way.

If you only have ideas about what they can do (not uncommon), I would suggest translating the idea into non-leading questions that give them space to use their own creativity.

Here’s an example:

Let say I think the key to marital happiness is for you to get on anti-depressants.

I have a feeling you might not like it if I say:

“I think you should try anti-depressants for 6 months.”

So I ask it as a question:

“Why don’t you just try anti-depressants for 6 months?”

That’s a leading question. So is:

“Have you considered anti-depressants?”

But let’s say you mentioned mood swings as a shared problem, as well as my inability to know your mood and react in the way you would want. Then I could ask:

“What are some options for better understanding or managing your mood swings?”

If we pursue that for a bit and my favorite option (drugs!) still doesn’t come up, I can still ask:

“I’ve been wondering if anti-depressants might help us. What do you think about that? What are the pro’s and con’s from your perspective?”

6. What do we want to remember? (Commitments)

This is a time to strengthen and record any agreed-upon solutions or ideas to explore. You might write them down or set them to verse like an epic poem. The key is to remember them in some way so you can check back on them later and see how things are working.

7. Closing

Again, an opportunity for ritual and strengthening the container. Maybe there’s an opportunity to debrief a bit and share what worked and what you would like to do differently (together) if you were to do the process again.