Settling a divorce is challenging. It often is fraught with mental, emotional and financial turmoil.
After many years together, the spouses need to unwind their interconnected lives and somehow divide their lives with their children, their assets and debts and their incomes.
Judges, lawyers and mediators call these ‘legal issues’. But for the spouses, each subject is extremely personal. In such situations, Distributive Mediation is a valuable tool for reaching resolutions.
This is because Distributive Mediation is an approach that has proven to be particularly effective in divorce mediation.
Distributive Mediation focuses on creating an inventory of all the legal issues, wishes and fears. Then the mediator explores each spouse’s view on each issue. This examination process is used by the mediator to survey the level of importance that each spouse ascribes to each issue. This data is then employed by the mediator to facilitate a negotiation that permits each spouse to come closer to their ultimate goals by sacrificing the least valued objectives. By helping each spouse achieve small victories, the mediator moves them towards a global resolution.
Before delving into the benefits of Distributive Mediation, it is crucial to grasp its philosophical foundation. This process involves identifying the pie, discovering each spouse’s preferred part of the pie and then facilitating a dialogue on how to divide the pie. In divorce mediation, this translates to the equitable distribution of assets, liabilities and responsibilities.
In Distributive Mediation, the mediator helps each spouse assess their Best Alternative to a Negotiated Agreement (BATNA) and Reservation Point (RP).
This involves understanding what they are willing to accept or do if an agreement cannot be reached. To reach a mutually beneficial agreement, it is crucial to estimate each spouse’s BATNA and RP. For one spouse, this may mean that she desperately wants to keep the home, while the other spouse wants to lower support to qualify for the purchase of a new condo.
This exercise helps identify the Zone of Possible Agreement (ZOPA), the perimeter within which a settlement may be reached. By focusing each spouse on the other spouse’s BATNA and RP, mediators help divorcing spouses navigate the process, using valuable intelligence and achieving a critical consensus.
However, cautions apply. In making unilateral concessions without receiving reciprocation can be detrimental. Spouses should refrain from making concessions until the other spouse does the same. If there is no reciprocity, it may be time to consider other options.
Silence is an important tool in Distributive Mediation. Some often rush to fill silences, potentially undermining the power of contemplation. Being comfortable with silence is essential. One spouse’s silence may be a strategic move to gain concessions, from the other spouse and reacting hastily can lead to unfavourable outcomes.
In Distributive Mediation, validation and recognition is important. Each spouse will invariably believe that their concessions were greater or more valuable than the other spouse’s concessions. The mediator must label them explicitly. By clarifying the value and cost of each concession, the spouses find value in their contributions and avoid the feeling that such concessions are taken for granted.
Some concessions are contingent. For example, a spouse may agree to a particular transfer of assets if the other spouse meets certain pre-conditions. The mediator must ensure that there is no ambiguity in the sequence of events.
If implemented properly, Distributive Mediation in divorce is a powerful tool used by the mediator in negotiation. It focuses on the fair division of parenting time, assets, debts and income, resulting in a mutually acceptable agreement.
Distributive Mediation helps divorcing spouses find common ground and achieve small victories throughout the process. It acknowledges the reality that both spouses have distinct interests and concerns, often conflicting, and aims to address these differences in a structured and equitable manner. Distributive Mediation promotes cooperation, reduces conflict, and ultimately helps move the divorce process towards a global resolution that both spouses can accept.
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