Following on from our Convergent Facilitation blog post, here’s an illustrative case study.
Child custody is often a battleground in American legislatures, like abortion and gay marriage, with the additional ferocity provided by the divorce courts. In Minnesota, these struggles have gone on for more than a decade. In the end, some opponents just avoided each other. Brian Ulrich, a divorced father and activist with the Center for Parental Responsibility, remembers seeing an opposing legislator approach the lift that he was in. “The legislator turned around and took the stairs instead of getting on the elevator with us”.
In 2012, the Minnesota Senate passed a compromise bill that had a default split of 35/65 for the ration of time that a child spent with the father to that with the mother. But the governor refused to sign the legislation, saying that there were compelling arguments on both sides: those for a 50/50 split and those against. He called on the warring factions to break the impasse.
A former family court judge, Bruce Peterson, convened a facilitated meeting. He invited legislators representing both parties and opposing positions, lawyers, judges, domestic violence workers, and parent activists, and others. When Brian’s group was invited to meet their adversaries, he laughed: “I thought, you’re just wasting your time. We were so entirely opposed. I had seen the lobbying. I had seen the emotions of the presentations at the committee hearings, the unpleasant glances, the unwillingness to sit down and talk before that. It was just a recipe for failure.”
Other stakeholders shared his pessimism. Rep. Tim Mahoney later told a House committee:
“I really had no interest nor any belief that it would actually do anything. One of my opening statements was that I didn’t trust anybody in the room.”
Yet in 2015, a package of bills, developed by the group, supported by the whole group, passed the House of Representatives 121-0 and the Senate 61-3. How?
In the first meeting, a lawyer was blunt: “There’s a philosophical difference here, and there’s no point in dialogue. “Some of us think that a presumption of joint custody is just not a wise thing to do, and that’s all there is to it.” Miki Kashtan, the facilitator, looked for the ‘non-controversial essence’ behind this statement. (See my previous blog for an explanation of ‘non-controversial essence’.) This was that the lawyer wanted each family to be dealt with on the basis of its particular circumstances. When his opponents agreed with this principle, so it was indeed ‘non-controversial’, Miki knew she was getting somewhere.
After a day’s work, they had an agreed set of principles, which also included:
- Reducing family conflict
- Developing evidence-based solutions
That enabled them to agree some small changes to the legislation. Relationships between people on different sides improved enormously. But, said Brian Ulrich, “Despite the trust and the goodwill that clearly existed by that point, in December 2014 I thought it might all still collapse, because we still hadn’t gotten to the core issue of parenting time.”
They started this phase of work by agreeing a definition of consensus. This would be when the group both agreed on a single proposal and when each member could honestly agree with four statements, such as “whether or not I prefer this decision, I support it because it attends to more needs and concerns than any other proposal we explored.”
They did indeed reach agreement on parenting time. The breakthrough came when a participant who had always resisted the prescription of 50/50 parenting-time suggested that a new factor be added to the list used by judges and custody evaluators to determine the “best interest of the child”. The addition was: “The benefit to the child in maximizing time with both parents and the detriment to the child in limiting time with either parent.”
I’ll give the last word to Brian Ulrich: “I went in thinking it was going to be a disaster and came out with hope.”