Whenever I start working with a new divorce client – be it for litigation, mediation, or a collaborative divorce, I make sure that we’re both clear on what the client wants from the divorce settlement. More importantly, I seek to make sure that we’re both clear on why he or she wants those particular provisions in the final decree.
There’s a story I remember from my first collaborative law training back in 1999, with collaborative law pioneers Pauline Tesler and Stu Webb, illustrating why this is so important. In the story, there are two women who are fighting over a single orange. A friend steps in, cuts the orange in half, and gives each woman half the orange – but to his surprise, both of the women were still upset, even after each of them received what he thought was a fair share of the orange. It turns out the first woman wanted all of the peel as an ingredient for baking a cake, and the second woman wanted all of the juice inside the orange to drink.
The parable illustrates the importance of knowing why each person in a dispute wants the item in question. If the friend knew what both women wanted, he could have divided the orange in a less obvious way than cutting it in half, but in a way that would have satisfied both their concerns.
If both parties’ representatives in a legal dispute know the answer to “Why?” as well as to “What?”, they can come up with creative solutions that leave both parties feeling like they got what they wanted in a resolution. While the term “win-win” is sometimes overused, the idea that there doesn’t have to be a winner and a loser in order to settle a divorce is an idea that we believe in strongly at Hance Wickham.
As good mediators know, the answer to the question “Why?” isn’t always immediately apparent. In the dispute over the orange, the initial answers the women might have given to the “Why?” question was “I had the orange first” or “I like oranges more than she does” or “She wasn’t really interested in the orange until I wanted it.” I know, from my experience in working with clients, that it can take an investment of time and energy on my part in order to help a client arrive at those answers.
But it’s an investment that pays off once the negotiations get going. It can help focus the issues for divorcing couples, it can help both parties tackle the most challenging issues directly, and it helps lawyers work up possible solutions to the disputes more effectively. And in our practice, where we strive to bring couples to peaceable solutions efficiently, the investment we make up front is definitely worth it.