Mediation: Can Everybody Win?

by William H. Donahue, Jr., Esq., APM

In conflicts ranging from military battles to corporate wars to divorce, there’s usually a winner and a loser. In fact, we are conditioned to believe from an early age that when we come into conflict, there must be a victor who defeats another. So what do mediators mean when they say everybody wins in mediation? Is there such a thing as a win/win solution?

Creating Value
Most conflicts do have a win/win solution, but finding it often takes a lot of hard work, creativity and imagination. And most importantly, it takes a willingness to change the way you define winning. Let me give you an example in the divorce context. I worked with a couple recently that had been married for 27 years. I’ll call them Joan and Jerry. They had two grown children who were both out of college. Jerry earned over $100,000 a year as an accountant. Joan earned $45,000 as a teacher. The big issue they needed to resolve was alimony. Joan felt she was entitled to $2,000 per month alimony. Jerry felt she wasn’t going to starve on $45,000 per year so he shouldn’t have to pay alimony at all. Besides, he argued, the divorce was Joan’s decision.

If you look at this conflict the way Joan and Jerry did when they started mediation, there are very limited solutions. Joan will feel she won only if she gets the $2,000 per month. Jerry will feel he won only if he pays nothing. In litigation, they would settle the issue by both of them negotiating down, through their lawyers, to an alimony figure that made them both feel as if they lost. Jerry would be paying too much. Joan wouldn’t be getting enough.

But suppose they looked at the issue differently. What if they were able to redefine the goals they were negotiating? In mediation, I would ask them both about other things that were important to them. Relationships with their children would be an area we would discuss. How do each of them want to be seen by their children? What kind of role models do they want to be? I would ask them about the relationship they want to have with each other after the divorce. Is it important to them that they end the marriage with respect for each other, that they be able, to some extent, to put anger and bitterness behind them? I would also talk to them about their financial goals and needs in the future. How and where did they each hope to live, and what would it take to make them both feel secure.

You might be asking, what’s the point of all this? Jerry still has to decide if he’s going to pay alimony without being forced to by a judge, and if so, how much? That’s the decision he has to make, but the reason behind these questions is to help Jerry and Joan both think beyond the issue at hand about what in their lives is important to them, has value to them, and that they want to hold onto after the divorce. In the process, they may find or create value where they didn’t see it before. In fact, that’s just what happened. The couple came to realize that several of the things we talked about were of great value to them. Despite his present anger, Jerry didn?t want to start a new life filled with anger and knowing that Joan resented or even hated him for using alimony as a way to punish her.

If coming out of his divorce with a sense of self respect and the knowledge that Joan respected him was important to him, what kind of solution to the alimony issue would best enable him to get what he valued? After further discussions, and each of them consulting with their attorneys, they settled on a figure reasonably close to Joan’s original request. But they both felt they had won. Joan won because she would have the alimony she needed to live comfortably and with a minimum of disruption to her life. And Jerry won because he had changed what it meant to him to win. His decision to pay alimony was consistent with the way he wanted to feel about himself, with the kind of person he thought himself to be and wanted Joan and his children to think him to be.

But wait, you may be saying. Isn’t the result the same? In settlement terms, the answer is yes. Most of my mediation clients reach solutions that are similar to ones they would reach in litigation or that a judge would decide, but the result is not the same and the difference is how each of them feels about the settlement. And that makes all the difference in the world. If you don’t think the difference is important, think about this statistic. Nearly 40% of people who get divorced through litigation end up back in court after the divorce because of a dispute they can’t work out. Only 4% of people who mediate their divorces end up back in court. Through mediation, both parties in a divorce feel they won something of value to them. This makes them less likely to harbor resentment that could lead to more conflicts down the road.