One of the challenges in mediation is that parties usually come to mediation already with a dispute. The training of lawyers and many mediators includes an assumption that the parties are in a dispute. Thus, the goal of mediation is often seen as resolving the dispute and most mediation techniques are dispute resolution tools. One of the most useful tools in that kit is refocusing parties on their interests and away from their positions and then looking for “win-win” compromises. The mediator will deem the mediation a success if the dispute is resolved. Is this really a success?
Game Theory is a branch of mathematics that studies decision-making by people and entities in strategic relationships with one another, where the decisions of one have an impact on the other. First studying decision making in parlor games, thus the name “game theory,” game theory has been applied to economics, war strategy and some forms of law, such as contract law. A game is defined by its parts: parties, rules, payoffs and choices/strategies.
Five Nobel prizes have been awarded to game theorists, all for economics, the most famous of whom is John Nash, subject of the book and movie, A Beautiful Mind. Game theory informs us as to how people generally make rational choices and that when they appear to be irrational, it is because of the way the game is set up, usually the rules and the payoffs.
Game Theory based negotiations challenge some basic assumptions in traditional family law. InGame Theory and the Transformation of Family Law, the authors detail those assumptions and analyze the manner in which those assumptions make disputes and conflict the rational choice. One of those assumptions is that the parties are in dispute. Our very language illustrates this. The attorneys are called “opposing counsel” and the other party is referred to as “the other side.” One attorney cannot represent both parties because it is assumed that the interests of the parties are opposed to one another.
Imagine that you are called to mediate a dispute between happily married spouses. When you meet with them, they describe the dispute as having to do with an upcoming vacation. The husband wants to fly and the wife wants to drive. Interest based questioning might include questions like, “Why do you want to drive; what are you trying to accomplish with driving?” We might imagine the wife saying that she likes the idea of a leisurely road trip and being able to see things along the way. We might imagine the husband saying that driving limits the time at their destination and he would like to get there and back and spend most of the time at the destination. As mediators, we might begin to think that perhaps they could fly one way, rent a car and drive back as a win-win solution. However, a more fundamental question, not yet asked, is “Where are you going; what is the destination?” Imagine asking the question and getting met with blank stares and “We haven’t talked about that yet.”
As silly as this metaphor sounds, this is often what parties come to mediation with, a dispute about how to get somewhere without having discussed where they want to go. In family law, a mother and father might come to the mediator with different positions on the physical custody schedule, without having discussed how they want the family experience to turn out for the children. Imagine that the mindset of the mediator does not assume that there is a dispute between parties. Imagine that the mediator assumes that the long term goals of the parties are very similar if not the same and that there might be some disagreements on how to reach those goals, but those disagreements can be resolved in ways that optimize the outcomes for both parties. In other words, rather than assuming that mediation is a dispute resolution process, imagine that the mediator assumes that it is a planning process aimed at identifying the goals of the parties and planning how to reach those goals.
If that were the case, the assumptions of the parties clash with the assumptions of the mediator. After all, the parties believe that they have a dispute. Perhaps the dispute was created by their attorneys by establishing selfish positions before they even began bargaining or by distracting the parties with short term legal outcomes, but the parties now believe that they have a dispute. They meet with the mediator, ready to fight for their positions. How can the mediator refocus the parties on their long term goals? Interest based questioning can be a start, but this too is limited because interest based bargaining still assumes a dispute and still assumes that the resolution of the dispute is the goal. In family law, agreement on a legal outcome might be the goal; whether or not the legal outcome helps the parties reach their long term goals. How can the mediator transform the mediation into a goal-based planning process?
Example 1: Spouses going through a divorce are referred to the mediator because they have a dispute over the custody schedule. The husband would like an equal custody schedule but is flexible as to the type of equal schedule. He prefers an alternating week schedule but has been told of other equal schedules and would consider them. The wife asserts that she has always been the primary parent and believes that she should remain so. She is open to sharing weekends and even to having an equal schedule during the summer, but she asserts that she does not want their two children “bouncing back and forth” during the school year. The mediator begins by asking interest-based questions. The husband reports that he wants to be part of the children’s schooling, to better know their children’s friends, to help with homework, to take them to their extracurricular activities and for the children to see their parents as on equal footing, for it to be fair so to speak. The wife reports that the children are used to her routines during the school week, their belongings can be in one place, they take the school bus from her residence, which she views as an important part of their social development, and most importantly, school is stressful and she does not want them to have the added stress of going back and forth to two different homes. In other words, the husband wants to fly and the wife wants to drive. Both have legitimate interests and are focused on the children, but they are not discussing their goals.
Imagine the mediator assumes that the goals of the parents are more in concert than dispute. The mediator might say, “It seems to me that both of you are saying that you want your children to do well in school and to be active socially. Is that correct?” If the parents assent, the mediator might then ask, “Why do you want them to do well in school and to be active socially?” That question might get them a little closer to their long term goals, but more questions might be needed, like, “Yes, but I am trying to understand how their adult lives will be better if they do well in school.” The mediator can then focus on what it takes for children to do well in school. Children, who do well in school, pay attention in class, study for tests and do all of their homework. In other words, they have good work habits. The mediator might add that research finds that children also do well in school in they have active parent involvement with the school and by participating in extracurricular activities. Finally, the mediator might inform the parents that the children with separated parents who have the best chance of doing well in school have the active involvement of both parents in their school and in their extracurricular activities. The mediator might even offer the research cites, so this does not present as the mediator’s opinion but rather as a report of the research. The focus shifts to planning to reach long term shared goals of the children doing well in school, both academically and socially, and away from selfish positions on a custody schedule.
Realistically, the parties in this example will still have in the back of their minds wanting to prevail in the custody dispute at this point. However, as the mediator continues to press forward with the planning process, that desire should fade some. For example, the mediator might detach parent involvement from the schedule by asking how the parents can share information about what is going on at school and how both can participate independent of the custody schedule. The same could be done with extracurricular activities. They could be asked how they can both facilitate the children’s social development, again independent of the custody schedule. By detaching these payoffs from the custody schedule, the mediator is reducing the payoff value of prevailing in the custody dispute. The custody schedule becomes little more than a logistics problem, which lends itself to a number of different solutions. If they decide that the husband will have some school days, they can address other logistics issues, such as what to do if objects are at the wrong house or the children riding the bus. The custody schedule is no longer the key to accomplishing the long term goals of the parties.
Example 2: Spouses going through a divorce have settled all of the financial issues except the issue of spousal support. The parties’ attorneys have informed their clients of the probable range and duration of support should the issue be litigated but the higher earner wants the support limited and the lower earner wants at least the high end of the estimate. Because the situation is ambiguous, game theory research informs us that both parties are likely to be unrealistically optimistic as to an outcome in litigation. However, at the advice of their attorneys, they are willing to try mediation.
The mediator might begin with interest based questions but these are just stepping stones with fairly predictable answers to getting to the long term goals of the parties. Perhaps the higher earner has the subjective goal of ending the spouse’s dependence on him or her. Perhaps the lower earner wants to go to school part time to prepare for a career to earn more money when support ends and needs the support to pay for school and pay other bills. The mediator can then begin to ask questions about their long term goals. Now the mediator might learn that the higher earner dislikes his or her job and a spousal support obligation locks him or her into the job, rather than being able to change jobs but earn much less.
Furthermore, the lower earner wants to done with depending on the spouse financially too, wants to be independent but in a higher paying career and is indifferent to whether or not the higher earner changes jobs. The focus of the mediation becomes developing a plan to get both parties to their desired goals as quickly as possible. Perhaps a very high support amount for a short period of time will allow the lower earner to quit work and go to school full time, shortening the time for both parties to reach their goals. Perhaps a shift in some of the property distribution will make this even more possible. Perhaps instead of the higher earner taking the new car with the loan, they can sell it and buy a used car with no loan to free up some income for support. The focus is on a plan to reach life goals instead of a dispute on a legal outcome.
Summary: If the mediator approaches the task with different assumptions, seeing the process as a forum for the parties to come up with a good plan to meet life goals, rather than a dispute resolution process with the goal of agreeing to a legal outcome, the outcome can be optimal for both. Because people entering into mediation view themselves as in a dispute, the toolkit of the mediator will necessarily include techniques for eliciting the long term objective and subjective goals of the parties and shift the process from prevailing on an issue to planning to reach life goals. Interest based questioning can be a first step but goal-based planning goes beyond short term interests that are little more than warrants for positions. A mother who does not want the additional stress of going back and forth during the school week has a legitimate interest, but the long term goal of doing well in school and socially might require that additional stress. A father that wants equal physical custody because he wants to be involved with school and activities has a legitimate interest, but getting those payoffs independent of the schedule and giving up some of the school week schedule might be a better way of reaching the goal of the children doing well. Paying higher support for a shorter period of time might well be more satisfying to both parties, particularly if they have any empathic compassion left for one another. Knowing that they are each prevailing because they will be reaching their goals in a shorter period of time than would likely have been the case had they litigated is certainly desirable objective goal, but knowing that the life of the other party will be improved sooner than otherwise might also be an important subjective goal for both of them.
Helping people who believe that they are opponents in a dispute shift to working together to reach optimal outcomes can be a much more satisfying process for the mediator and might feel much more like a meaningful success than simply resolving a dispute.
 A strategy is a series of choices.
Dr. Kenneth H. Waldron, Ph.D. is a clinical psychologist and partner of Monona Mediation and Counseling LLC. He is also a founder/partner with Allan Koritzinsky, J.D. and Michael Spierer, Ph.D. in DivorceMapping, a computer program for organizing, analyzing, planning and settling divorce cases. His practice has been devoted to divorce-related issues for about thirty years, providing mediation, arbitration, forensic evaluations, expert witness services, educational programs for divorcing parents, and programs for conflicted parents, including co-parenting training and counseling. Dr. Waldron has done research and published broadly on topics related to children of divorce. He has presented to and trained groups of judges, lawyers and mental health providers nationwide and internationally, along with appearances on television and radio. He provides forensic services, including custody evaluations and expert testimony on divorce-related issues.
Allan R. Koritzinsky, JD is a retired partner with Foley & Lardner LLP in Madison, Wisconsin. As a family law attorney representing individual clients for over 44 years, Mr. Koritzinsky has focused on divorce law, alternative dispute resolution and works with colleagues in estate and business planning and real estate transactions. A native of Wisconsin, Mr. Koritzinsky earned his undergraduate degree in history and his law degree from the University of Wisconsin – Madison. Mr. Koritzinsky was actively involved in many state and national professional organizations and was listed in The Best Lawyers in America® for over 25 years. Mr. Koritzinsky was the 2011 recipient of the State Bar of Wisconsin Senior Lawyers Division Leonard L. Loeb Award. Mr. Koritzinsky has authored or co-authored numerous articles and books (including Tax Strategies in Divorce and Family Law Casenotes & Quotes) and lectured in lawyer and judicial continuing education seminars throughout his career. He was also a Lecturer/Instructor at the University of Wisconsin Law School. While in Viet Nam (1967-1968), he taught full semester courses in Comparative Law and Introduction to American Law at the University of Saigon Law School. Since retirement he has been doing family law consulting and mediation-arbitration work, as well as working as a business and real estate consultant and acting as a co-trustee of a Generation-skipping Trust.
©2016 Kenneth Waldron and Allan Koritzinsky