Mediation Magic: Creative Ways to Reach Agreement

Don Greenstein is a Massachusetts-based attorney, also licensed in Virginia and Washington DC, a mediator who has nearly 30 years of experience helping people resolve conflict.  He has handled more than a thousand family law cases, and is passionate about helping former couples (and others) work through differences to create successful long-term relationships. An affiliate of the Boston Law Collaborative, Greenstein also teaches at Massachusetts General Hospital’s Institute for Medical Professionals. He and his wife of nine years have a blended family of three daughters and two “sons-in-love,” as he calls his step-children.
 

We caught up with Greenstein for a look at how a divorce mediation works, and what couples with kids do to make it a success.

Splitopia: What are the habits of those who experience highly successful mediated divorces?

DG: It’s a great sign when a couple asks, “How can we help you help us, Don?” Also, listeners do better than those who quickly react to the other’s side of the story or those who are quick to deny requests. Couples with children do best when each party puts the children’s best interests ahead of their own.

Splitopia: You have a pretty creative mediation technique for helping parents keep their kids’ wellbeing in the forefront of their minds.  Can you elaborate on this?

DG: I ask clients to bring photographs of their children.  At the outset of each session, we place the photos in the center of the table.  There’s also a chair at the table for each of the children, though of course they are not actually present.  I ask the question, “What do your children need?”

When major disagreements arise, I ask the parties to take turns sitting in the chairs of each child and responding as if they were that child. While sitting in one of their children’s seats, each parent expresses to the other what they perceive to be best from that child’s perspective.

 Splitopia: That is so interesting! So they’re kind of role-playing their children.  What happens when they sit in the child’s chair?  Have you seen any real “ah-ha” moments, or shifts in perspective from this exercise?

DG: When parents speak for their children, they frequently go to their own "heart" and compassion.  The "ah-ha" moment can happen when they suddenly realize they will need to work with their child’s other parent for a long, long time, and that the divorce process is the first step in healing the wounds from the marriage. It frequently helps all involved to begin to put their own needs and positions aside and think about how they can best collaborate. Sometimes it just takes my pointing to their family photos in the middle of the table and reminding them that there are others involved in this process.  I remind them to identify their children's interests as well as their own.

Splitopia: What other surprising tactics do you have to help create a positive experience for divorcing couples?

DG: I help parties create a ceremony to honor the divorce in a positive way. It could be a champagne (or sparkling cider) toast to celebrate the things they honor in each other and the positivity of the newly created relationship. his process usually occurs at the end of the mediation, once they have completed and signed a settlement agreement.

Another example occurs at the start of the mediation.  I ask them to talk about when they first met as a couple, what attracted them to each other, what they value about their relationship.  This helps the couple focus on the positive, and my hope is to help parties find ways to continue to value each other and create positive outcomes.  I do not want people to focus on the past, even though creating options for the future may mean discussing the past; dwelling on the past will not help create a workable settlement agreement.

The best cases are when a couple stays involved in their children’s lives, and create a joint parenting plan that they agree upon, and can implement successfully. Sometimes I stay connected as a resource, as well. I’ve been invited to weddings of my clients’ kids. The most surprising experiences have been parties who ended up staying together, or who divorced and then remarried and invited me to the wedding. This has happened on a few occasions.

Splitopia: What’s the first conversation like when someone calls you about possibly mediating a divorce?

DG: The first conversation generally occurs on the phone.  I assess whether or not mediation is appropriate.  When there is a power differential, which I determine through my initial conversations, the situation may not be appropriate for mediation.  If I feel I can help the parties balance the power imbalance, I may agree to undertake the mediation.  I’ve also had couples who lie to each other, or attempt to hide assets. Mediation stops if I learn someone is hiding assets and is not giving full and honest disclosure.

I also talk to each party individually before we start, in order to build trust and make sure they understand the process.  Generally, I allow them to share their perspectives of the marriage in a joint session—so each can hear the other’s story in his or her own words. 

I encourage prospective clients to interview two or more mediators to make sure it’s a good fit. I also refer my clients to professionals for working out joint parenting arrangements.  I have lists of psychotherapists and social workers, as well as lawyers and financial planners, should a couple want to seek advice in other areas.

Splitopia: What are the pitfalls a couple going through mediation should look out for?

DG: In roughly one-third of my cases, one party wants a divorce and the other doesn’t.  Mediation is voluntary—either party can walk away at any time.  So each party needs to be aware that no matter how invested he or she becomes in the mediation process, the other party may decide to give up on it. 

In addition, in some cases mediation becomes time-consuming,, and sometimes people feel it moves slowly.  Mediation can take anywhere from one four-hour session to more than a year.  Complex cases that involve a number of children, pensions and real property can take two years or more. But the parties control the speed.

Splitopia: How do you stay neutral if you like one person and not the other?

DG: I cannot let my biases affect the process.  We all have them. I share with the parties at the outset my personal biases so they can decide if I am appropriate for the case.  I have a bias against people fighting over personal property.  I give them homework to make an inventory of what they want.  It’s my job to deal with how they might trade a painting or money, say, for the grandfather clock they both want.

I had a case in which one of the parties had a large pension and did not want to share it with the other spouse.  By putting everything out on the table, there was a give and take. The parties were then able to reach an agreement that allowed the individual to retain the pension and the other individual received a monetary award paid over time equal to the amount the pension would have provided.

My bias against a parent who doesn’t want to be involved in his or her child’s life is more challenging.  I wouldn’t tell the couple specifically why, but I would refer them to another mediator.

Splitopia: What are some surprising things couples want help working out?

DG: Airline miles are a huge issue. Airlines and credit card companies are resistant to dividing mileage accounts, unless they are joint accounts.  Alternatively, they might charge large fees.  On a number of occasions, the couple has agreed to use the miles for the children’s travel.

Splitopia: How do you define a fair settlement?

 DG: Simply put, a fair settlement is the one decided by the two parties. I let the parties know that they are the ones who determine what a fair outcome is. The mediator’s job is to reality-test the proposed settlement with each party.  I do that both in joint session and in individual sessions.  We meet regularly, and the parties brainstorm options to close the gap of their differences, such as in the pension example.

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Susan Orlins is an award-winning journalist and author of Confessions of a Worrywart: Husbands, Lovers, Mothers and Others and co-author of Still Standing: How an Ex-Con Found Salvation in the Floodwaters of Katrina.  She has three grown daughters and has been divorced since 1998. For more than a decade, she has taken yearly vacations with her ex-husband and their daughters.  She lives in Washington D.C., where she is an editor of Street Sense, a newspaper written and sold by homeless vendors.