When Adverse Demands Become Agreed Goals: One Couple's Story

Jennifer and Michael both want to keep and live in the marital home. Their immediate and adverse demands appear to be irreconcilable. After a divorce, they can't both live in the same house. Three solutions come to mind:

  • Michael lives in the house and Jennifer moves out.
  • Jennifer lives in the house and Michael moves out.
  • Jennifer and Michael sell the house and both move out.

The first two solutions will make one spouse happy and one spouse unhappy. The third will make both of them unhappy. But if they can define goals that are not adverse — and that are more important to them than their individual demands — they may be able to find a solution that makes them both happy. With the help of their mediator, Jennifer and Michael list goals that are mutual — or at least not adverse. These goals include:

  • Preservation of relationships
  • The well-being of their children
  • The desire to hold onto a "family home"

Once they articulate their goals, a solution opens up. Both spouses, after realistic discussion, realize their children will be better off remaining in the family home, with the parent who travels less on business and has been the primary caregiver.

This mutual concern for their children helps them reach an agreement that the primary caregiver spouse will retain and live in the family home, despite the ardent desire of the other spouse to own the house. The spouse who moves out, the couple agrees, will establish a second loving residence for their children, in which anger and resentment of over loss of the "family home" will not reside.

What Is Divorce Mediation?

Mediation is a form of dispute resolution that uses a neutral mediator rather than a judge or arbitrator. A divorce mediator structures and guides negotiations and helps a divorcing couple understand the principles of divorce law.

Divorce mediation is based on the idea that couples who are splitting up can resolve issues themselves. A divorce mediator encourages couples to reach an agreement that meets their immediate and future needs and goals.

A Non-Adversarial Approach to Divorce
By its very nature, litigation is adversarial because it requires someone else — a judge — to make decisions for the divorcing couple. It forces each party to convince the judge that one side should win and the other should lose.

Mediation is different. Because both parties make the decisions themselves, they stop seeing each other as enemies with adverse demands. Their divorce mediator helps them define mutual goals, and then they work together to craft agreements that achieve those goals. A mediated divorce is one that maximizes the benefits and minimizes the losses for both people.

In mediation, there is no trial looming on the horizon. You don't establish demands or positions from which you have to bargain down. Since the goal is to find mutually beneficial solutions, you have freedom to find novel and creative solutions that best meet your needs. 

Key Issues in Most Divorces

  • Parenting plans, including child support, are mediated so parents can avoid the nightmare of contested custody battles in court — the best thing divorcing people can do for their children. Learn more.  
  • Equitable distribution of property is the legal term for deciding who gets what after the divorce. Mediation helps people resolve the issue at the heart of equitable distribution: what is fair? Learn more. 
  • Alimony can be the most difficult issue in divorce. Mediation helps people look at the emotions behind this issue so they can resolve it to both parties' satisfaction. Learn more.

After mediation, some people hire individual attorneys to review the Agreement they've crafted, to ensure each person's legal rights are protected. Others simply use online resources to guide them in legally filing their divorces and receiving a final judgment.