After graduating from the prestigious Brown University in 1969 and working as a litigator for five years, the formidable young trial attorney Gary Friedman felt, in some ways, helpless. Gary had become a lawyer to help people, but found his work was really a form of manipulating reality in ways that didn’t correspond to the truth of the matters.
Gary grew up in a family of lawyers and had been taught to view problems in terms of blame, and right and wrong. In his family’s case, his family was always right and the rest of the world was wrong. Even as a child, Gary questioned this skewed viewpoint, but it was reinforced by the legal system that pitted parties against each other and gave judges decision making power.
Troubled to find his role as an attorney at odds with his deep desire to be in a different kind of relationship with people in need of help resolving legal issues, Gary asked himself, “Shouldn’t people have the help of someone who has legal expertise and a desire to help both parties?” Gary knew the answer.
In 1976 Gary quit his job as a litigator and embarked on a journey to shift his orientation and relationship with conflict and, “experiment by experiment,” developed a new model for resolving conflict.
Today, forty-years after challenging the legal system’s approach to conflict resolution, and developing the understanding-based model, Gary has trained lawyers, law professors, judges, and psychotherapists in the United States, Europe, and Israel. Gary has taught courses in negotiation and mediation at Stanford University Law School, the New College of Law, Harvard Law School’s Program on Negotiation, and the World Intellectual Property Organization in Geneva.
Gary has written extensively about mediation and conflict resolution and is the author of A Guide to Divorce Mediation, (Workman Publishing, l993), and co-author of Challenging Conflict: Mediation Through Understanding (American Bar Association and Harvard’s Program on Negotiation, 2008), and Inside Out: How Conflict Professionals Can Use Self-Reflection to Help Their Clients (American Bar Association, 2015.) Gary also is the co-founder of The Center for Understanding through Conflict, which is based in Mill Valley, California, and has mediated over a thousand legal disputes, including those arising as couples end their marriages and domestic partnerships.
I sat down with Gary to discuss how couples and partners can use the understanding-based model to speak authentically, reach understanding through conflict in divorce, and find lasting solutions to divorce problems. Gary’s model is an alternative method to the oft used coercive or caucusing mediation models lawyers, judges, and mediators use. Here is the transcript of our conversation.
Helene: How does your understanding-based mediation model differ from the traditional model most attorneys use in divorce cases?
Gary: At the heart of the understanding-based model is the idea that the people who created the problem together, who are also the people who have to live with the solution, know best. The parties know what makes the most sense to them, and what they’re willing to commit to and live with. The mediation model and sessions proceed from this premise.
Our understanding-based mediation model flips the traditional approach to both litigation and settlement conferences on its head. What I call the settlement conference model of mediation is the way lawyers have traditionally looked at the world, which is, coercion is the way to get people to reach agreement when they disagree with each other. With the settlement conference model, you put the parties in separate rooms, shuffle back and forth, and in subtle and not so subtle ways, you turn up the heat on both sides to try to reach a kind of compromise.
The basic assumption with the antiquated model that most lawyers learn in their professional training is that the professionals know best –that we know what people ought to do better than they do themselves. As a result, we the professionals feel a major responsibility to figure out what the couple should do then get them there. When we have lawyers and clients in a room together, the professionals usually start with the antiquated mindset, and that’s where we begin.
The idea with the understanding-based model is that we place understanding at the center of the sessions with the hope that, if we can help people understand themselves, what’s really important to them, and understand the other party, what’s really important to the other person, and understand the external realities that must be taken into account, we can help the parties find a solution that actually fits their situation and stands on the foundation of what they think is right rather than what outsiders, including the law, think the solutions should be. To do this of course, we use the power of understanding as an alternative to using the power of coercion.
The hope is, if the parties reach an agreement that really makes sense to them, it’s going to bring peace to the situation, and their experience will be very different from that of people who feel pushed or coerced by each other, lawyers, mediators, or the law.
Helene: How does a couple reach understanding through conflict, and how does understanding help couples negotiate agreements?
Gary: What you want to know is, how exactly is it that we bring about this understanding, and what difference is understanding going to make in terms of reaching an agreement.
Gary: What I’ve just done with you is a technique we use and call the “loop of understanding.” It’s used to see if, and demonstrate that I actually understood you.
People often misunderstand the things other people say. Especially when they disagree with one another. Some level of understanding has to do with how we communicate and some with hearing things through our filters –what we want to hear or what we don’t want to hear. Clarifying what a party means during mediation is one piece of the understanding model.
Another piece is helping people understand themselves, not just their positions, but what’s underneath their positions. Most arguing couples haven’t thought through what it is they’re actually disagreeing about. Somebody says, “I want $5,000 a month for spousal support.” The other says, “No! There’s no way!” It appears they’re fighting about the money, but what’s underneath, what they’re actually fighting about has to do with their understandings of themselves, what they need, what feels right to them. And in many cases where people are getting a divorce, they’re arguing about something that happened or didn’t happen in the marriage. The arguments also have to do with the future – what’s going to happen in life. There are fear and uncertainty. There’s the question of, “What is my life going to look like if I’m no longer married to this person?” There are always things people haven’t thought through and need to understand about themselves to navigate the labyrinth of a divorce. There are many layers.
A divorcing person also needs to understand their spouse’s experiences and what’s important to the other person to reach an agreement that’s consensual. The only solutions are those that consider what’s important to both sides.
There are other things that must be understood as well, for example, the law. People need to get a sense of how the courts will look at the decisions they’re making, but it doesn’t need to be the basis for the decisions they reach. The law actually permits people to make their own decisions based on what they think is right even though they may come up with a very different solution than what a judge would do, if the judge were to make the decision. And private ordering is something the courts’ respect. A couple’s agreement that may only spend 10 seconds on a judge’s desk before being signed by the judge will be as powerful as if the judge has made the decision. How the law comes into play is tricky and complicated because of the parties’ relationships to the law, to each other, to authority, which is all part of the mix, but our view is, this is an indispensable part of understanding.
A divorcing couple also needs to understand their economic realities and the other people who will be impacted by their divorce decisions. These are external factors, but realities that are part of the divorce problems and need to be understood. The idea is to gain an understanding of the whole problem, to understand external and internal factors, and come to a reasoned, powerful and settled decision that has legs.
Helene: Are clients accompanied by their attorneys in your mediation sessions, and if so, how do you proceed?
Gary: It isn’t essential, but I prefer people have lawyers who are always in the room. I think in some ways, it gives people a chance to have the best of both worlds, to have the protection of their lawyer and the opportunity to participate directly in the mediation. However, it’s important for the lawyers to be willing to have their clients be front and center rather than speaking or negotiating for them.
Getting clear about the roles the lawyers and clients will play is really important. Typically, there are different pieces to the conversation, and one is about the law. When it comes to talking about the law, I expect the lawyers to be the participants. They’re the experts. When it comes to talking about what’s important to the spouses who are in disagreement, they’re the experts, and I expect them to do the talking. When it comes to negotiation, the hope is the clients will do the negotiating.
If a spouse feels there’s a power imbalance or is uncomfortable negotiating, we give the lawyer and client an opportunity to meet separately without me, so anytime someone wants the support of their lawyer, they can get it, but then they come back in and the client does the talking. It makes a big difference for a number of people. If the lawyers aren’t interested in doing it that way, then we have a problem. We have to find a way to address that head-on.
Helene: How do you handle disagreements that arise between spouses during mediation?
Gary: The first step is to normalize the disagreement and be glad that people are willing to disagree with each other. There are a fair number of people who come to mediation and feel so strongly about the process being peaceful and wanting to reach an agreement that they may paper over their disagreements or give up or give in. So the fact that parties are willing to disagree with each other is a good sign.
When a couple has a disagreement, I usually say, “This is great. You have different views. You’ve taken a stand on things that are really important, and that’s why we need to explore the issue. Are you willing to explore that disagreement? I know it’s upsetting to hear the other person sees it so differently than you, but are you willing to have a conversation where each of you has the room to express all the things you care about?”
I may ask questions like, “How did you arrive at the $5,000 spousal support figure? What does it represent to you? You don’t want to pay any spousal support. What’s that about? Can we have this conversation and give each of you a chance to share your reasons and what’s important to you?”
I try to help the parties understand each others views and explain, “I’m not asking you to agree that your spouse is right. I’m just asking if you’re willing to make the effort to understand and to demonstrate your understanding just as I demonstrated my understanding of you.”
When a couple understands the whole problem, we get to see what’s really behind their positions. For example, instead of their stances being $5,000 or nothing, we understand the spouse is asking for $5,000 because he/she is trying to advance his/her career and needs further education. When we understand the whole problem we can think differently about solutions rather than just frame positions like $5,000 or nothing. If we start to open the box of things the people care about, we can design very different solutions. It’s not about trying to reach a compromise. It’s about trying to find something that actually works for both parties.
Helene: What if a spouse understands the other spouse’s position, but is unwilling to change his or her position?
Gary: I hope that would be true because hopefully, the spouse didn’t take the original position as an act of revenge or in an attempt to hurt the other person, but actually thought it through. If we still have a disagreement we’ll continue to look for the underlying reasons in an effort to find specific solutions, but if push comes to shove, we find some way to help them negotiate. And there are many different ways to help a couple negotiate that don’t involve turning up the heat, trying to scare them about what would happen in court, or telling them they must do something. They feel the pressure. They live with the tension of disagreement and they understand the whole problem.
We treat the parties as adults and say, “Let’s find a way to negotiate this that works for you. How do you want to do it?” Sometimes people want to do a dance that we’re all familiar with. Ask for too much, offer too little, and move towards each other, I actually find that to be rather unsatisfactory. Instead, we may ask, “Assume there’s a path from this foundation we’ve established about what’s important that leads to an agreement, how do we move along that path?”
Helene: What if a spouse doesn’t want to say what it is he or she wants while the spouse is in the room?
Gary: It’s true. People don’t want to be completely exposed. They want to test the waters and build trust in the negotiating process. We try to do this incrementally by helping people speak up and say what they’re comfortable saying. It’s also helpful to have an agreement about how we are going to do this.
We also may ask, “How do you think we can close the gap? What would it mean to you if your spouse were willing to accept your last offer? What would it mean for you to respond to their last offer by saying yes?” There’s a lot of information in the answers, and it usually isn’t just about the numbers. They always sit on some other foundation that we’re trying to unearth. We may go on to ask questions like, “What difference would it make to you if you paid $2,000 rather than $4,000? What difference will it make to you to know that you will get $4,000 rather than $2,000?” The gap is usually about something that happened or didn’t happen in the marriage so we need to have these conversations to unlock things.
Helene: I’ve seen mediators tell clients to stop arguing about issues that arose during the marriage. How do you handle old marital disputes that come up during sessions?
Gary: I say, “This sounds like a really charged issue. It sounds like it was sour in the marriage and it’s still here with you now at this moment. Can we have a conversation about that? Would you like to have a constructive conversation where we actually understand each other, what happened, and how it’s connected? Because we’re not just talking about an old issue. We’re talking about making decisions here, and I’d like to know how you see this issue connected to the decisions today.”
If a couple is fighting about an issue it means it’s important to them. Otherwise, they wouldn’t be fighting about it. Rather than squash the disagreement, we give it air and try to understand it and help them understand each other.
Helene: Can a couple use the understanding-based model to mediate if there is a disparity of power in the relationship?
Gary: Yes, if they’re both willing to recognize the disparity and realize that it may have been functional during the marriage, but it’s not going to be functional in a divorce when they’re going their separate ways. If they’re willing to make the effort to shift that pattern, then I think mediation can be wonderful. If not, mediation is probably a pretty lousy alternative.
Power imbalances aren’t necessarily rectified by having lawyers or even by using the legal system. There are more complex factors that affect the whole question of a power imbalance. We have to be careful about how we look at these kinds of questions where we think we can see the truth of where the power really stands. So many marriages, including my own, are ones where each person experiences the other person as having the power, and they’re both right.
Helene: What do you do when you witness a power imbalance during mediation?
Gary: I have a ground rule I’m very specific about. I say, “If you ask me whether something is fair or not, I’m going to ask you what you think because I don’t think my sense of what’s fair comes in to this process except under two conditions: first, if either of you is agreeing to something that will be illegal, I’m going to tell you, and two, if it feels like one of you has taken such advantage of the other person that I can’t live with it, I don’t want to be muzzled, and I am going to say something. And if I raise concerns, you can help me understand if there’s some distortion of mine that’s blinded me to seeing something that really makes sense for you.” It’s really about being in dialogue with the parties and having what I call a “horizontal relationship,” not a “vertical relationship,” where they see me as another human being. I don’t get to decide, but I’m also not going to sit there or be jumping up and down with joy when people reach an agreement if it looks extremely unrealistic.
Helene: Have you had situations where a third party has decision-making power in the mediation? And if so, how do you handle these situations?
Gary: All of the time. It’s really up to the parties, but I often think it’s useful to bring the other person in if both parties are willing. In a divorce, the kids sometimes come into mediation and in my experience, if both parents agree, I feel pretty confident it’s a good decision. They’re fair witnesses and they care for both sides.
Often there’s a new partner who’s a part of the life of one of the parties, and that new partner is saying, “You can’t do that.” The question is, “Are we going to do that? Are we going to have that person be a part of the mediation or be unseen?” Sometimes, people come without their lawyers and make progress, but when talking with their lawyer later the lawyer will say, “You did what?” Then the party comes back and says, “My lawyer said I made a big mistake.” My preference is to have the decision makers in the room; to find a way to integrate the third person into the process.
Helene: So a new partner might participate in mediation sessions?
Gary: Absolutely. Especially if they’re going to be a stepparent, one of the more complicated and maybe one of the most thankless jobs in life. I speak from personal experience. But it takes a lot of maturity on the part of the people to realize, okay, stepparents are not going to replace the parent. The father will always be the father. The mother will always be the mother. How do we deal with the fact that they are parent-like, but they’re not the parent? How are we going to work that out?
Helene: What are some of the most satisfactory outcomes you’ve witnessed through this work?
Gary: I ran into somebody in a market. I had mediated her divorce about 20 years ago and she said, “It’s great to see you. You’re never going to believe what happened.” I said, “What’s that?” She said, “Look who’s pushing the cart.” She and her husband had gotten back together a year earlier, nineteen years or so after the divorce. They had a wonderful relationship in the nineteen years since the divorce, so good in fact, they decided to marry each other and end their lives together as a married couple. It was a very sweet moment.
Helene: How do you weigh the benefits of mediation against going to trial?
Gary: I think the greatest benefit is people often feel better if they participate in the decision making rather than giving their power to a third party who doesn’t know the people and will never understand the situation like they do. I think the feeling of helplessness that comes from knowing another human being is going to be making that decisions are something very serious to consider.
For a number of people, having more control over the outcome is a very important reason to participate in mediation. For other people, I think it’s really about having a more personal process. Especially people going through a divorce. They’re in a relationship. They may or may not have a future relationship. They may or may not have kids. And the mediation experience can help them come to terms with the end or ongoing relationship.
It’s much harder to come to terms with divorce when somebody else makes the decisions, which adds to the layers of frustration and pain that people normally experience. Sometimes people may feel awful hearing the other person be unreasonable and think they’re going to do better in court. If that’s how they truly feel, it’s not the end of the world to go to court. However, I think there’s an opportunity in mediation for people to respect the relationship they’ve had, and by negotiating the divorce together, know they ended it in the best way they could. Whatever they want to say about what didn’t happen in the marriage, they can come through the divorce feeling like, “We did right by each other. We didn’t buy into the common feelings people have that you’re supposed to hate your ex-spouse. You’re supposed to break off with their family. You’re supposed to have friends choose which side they’re on.” I know people in their seventies or eighties who divorced twenty, thirty or forty years ago, and they’re still playing the process out in their heads. They’re prisoners of the pain they created by dividing the world into right and wrong and being stuck in that. Couples may be able to avoid the replay by using divorce mediation.
Helene: How do you suggest couples prepare for the mediation process?
Gary: I think the most important thing is that people not do anything before they come to mediation that’s given the other person an expectation that may be unraveled in the mediation. So try not to do too much. I think negotiation needs to be structured because many people don’t have the ability to know all of the issues and their interrelatedness. People will often say, “We’ve worked out the house, the kids, and we haven’t worked out support.” Well, guess what? These issues are all interrelated. When you start to focus on the issue of support, it may be that we are going to have to think differently about the kids in the house. So please don’t come in feeling like you’ve resolved things that may need to be revisited to reach an overall agreement that both believe is fair.
Helene: How can couples who live outside of San Francisco, California find mediators who have participated in your training?
Gary: We have offices located in California and New York, and links to our teacher’s mediation practices on our website. We’re also happy to provide referrals via email: admin (at) understandinginconflict.org