Center For Cooperative Divorce

By Irving H. Zaroff, JD LMFT and Dana Schutz, MA LMFT

What we call reality is an agreement that people have arrived at to make life more liveable
~Louise Nevelson

In negotiation, which is at the core of mediation, decisions only have meaning when all parties agree. The methods used to create agreement will affect the perceived value of the agreement and the chances for compliance. Often people engaged in a negotiation become entrenched in a position. Their willingness to move from their viewpoint may depend on mutual concessions – each must give up something – thus resulting in compromise. This certainly can lead to agreement, but “giving up something” can later create problems.

This is where the idea of building consensus comes in. A consensus, unlike a compromise, works to find common ground where each party can “live with” the resolution. This involves a process that includes active participation by all parties, ensuring that the different perspectives and needs of each person is understood, finding creative ways to meet these different needs, and a commitment by the parties to have their voices be heard, listen to the voices of others, and come to a mutually satisfactory agreement. It is a process to engage in utilizing each person’s best efforts leading to the smartest and most suitable decisions. There is no “giving up,” but rather picking out the very best ideas.

Consensus building is generally thought of in group decisions rather than mediation. But mediation can, and should, employ the consensus building strategies – especially when it comes to a divorce settlement. Having a sense that the agreement is “fair” is of paramount importance for long-term compliance (see our article Fair Play and the Divorce Game, November 2011).

Techniques used by facilitators include a focus on what is possible rather than what will not work, proper pacing (it may mean breaks in the mediation or, more commonly, working in segments with a week or two of time to reflect), and through brainstorming, presenting as many ideas as possible. The parties then subject each idea to scrutiny – which are helpful and which are not.

When an impasse occurs, it’s time to think about alternatives. One thing is certain – a third party imposing a decision rarely creates mutual satisfaction.