Transforming polarized
politics in the Minnesota state
legislature
A Convergent
Facilitation case study
Center for Efficient
Collaboration
Collaborative
leadership
Issue
Date August 2015
When
statehouse adversaries began working together with a facilitator from the
Center for Efficient Collaboration, a gridlocked political debate gave way to a remarkable shared win.
The Minnesota Child Custody Dialogue Group
transcended deeply entrenched positions and a history of personal mistrust to
resolve an issue that had seemed intractable for years. The one new factor was Convergent Facilitation, the CEC’s three-step
framework for group decision-making.
·
First
the dialogue group translated their differing views into deeper principles that
all agreed on.
·
Then
those principles inspired new proposals.
·
Finally,
they used their newfound mutual understanding
to craft a collaborative solution.
Like abortion
and gay marriage, child
custody is often a battleground in the culture wars of our time. Mutual
accusations are rife in this territory, not only between couples in court but
also in legislative debates across the U.S. The pressure of high “divorce rates
intersects with passionate arguments about, the treatment of fathers, the handling
of domestic abuse, and men’s and women’s evolving roles and rights.
I wouldn’t
have believed it was possible but we achieved more claims collaboratively than we
were able to do as adversaries ~
Rep. Tim Mahoney
In Minnesota,
these struggles have gone on for more than a decade. Eventually, some weary opponents
just avoided each.” other. Brian Ulrich, a divorced father and activist with
the
Center for Parental Responsibility,
remembers spotting an opposing legislator through an opening elevator door at
the capitol. “The legislator turned around and took the stairs instead of
getting on the elevator with us,” he recalls. When Brian’s group was invited to
join their adversaries for collaborative dialogues, he says he laughed. “I
thought, you’re just wasting your time,” he explains.
“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 at their
very first meeting in early 2013, advocates from all sides uncovered a wide
swath of common ground. They used Convergent
Facilitation, an approach developed at the Center for Efficient
Collaboration to support collaborative decision-making even in conflict-prone settings.
Guided by facilitator Miki Kashtan, the group drafted criteria for child
custody reform that all could agree on.
Over the next
two years they built on this foundation, eventually co-authoring legislation
that the Minnesota Lawyer called “a complete overhaul of the custody and
parenting time factors in Minnesota.” In May 2015 their package of bills,
supported by each constituency involved, passed the House of Representatives
121-0 and the Senate 61-3.
“The trust
that this process built has been quite amazing to me,” says Rep. Tim Mahoney.
“I wouldn’t have believed it was possible, but we achieved more collaboratively
than we were able to do as adversaries.”
Road to
consensus
The
persistent battle around child custody had reached a head in 2012. “Shared
parenting” advocates proposed a bill that would have judges presume a nearly
equal split of parenting time, absent something serious like domestic abuse.
The change would particularly help fathers, who ordinarily don’t get the
largest share of parenting time.
Timeline of
Minnesota child custody dialogues
May 2012:
Governor Mark Dayton vetoes proposed child custody legislation, calling on
opposing groups to work together.
November
2012: Judge Bruce Peterson convenes a dialogue group facilitated by the Center
for Efficient Collaboration’s Miki Kashtan.
January
2013–May 2014: Phase 1. The
group produces a set of 26 shared principles. Subcommittees
operationalize the principles, leading to unanimous passage of preliminary
legislation.
June 2014–May
2015: Phase 2. The group dramatically revises
“best
interest of the child” laws and finds a solution to its core conflict over when
and how to keep both parents in their children’s lives.
A second
legislative package passes nearly unanimously, and the governor signs it within
days.
June 2015
onward: Phase 3. Former
opponents continue working together to educate lawyers and judges, ensuring
their legislation is implemented in line with their intentions.
Opponents
argued that the rule was too broad for complex family conflicts, and the
Minnesota Senate lowered the default split to 35/65. But when the compromise
bill passed, the governor declined to sign the legislation, citing compelling
arguments on both sides and calling on the factions to break their impasse.
It was a
former family court judge, Bruce Peterson, who first convened a meeting with a
prospective facilitator. A few years before, Bruce had watched the state tackle
child custody by creating a task force. “There was a very nice report, but it
didn’t produce any resolution,” he says. “I was very distressed about all the
energy that was poured into this issue year after year. I thought the veto was
an opportunity to do something more productive.”
Bruce invited
legislators representing both parties and opposing positions, lawyers, judges,
domestic violence workers, and parent activists, among others. In the initial
phone calls, facilitator Miki Kashtan recalls,
“We were going back and forth and
round and round … with people being, at best, lukewarm about the prospect of
sitting in a meeting for a day with other on some stakeholders. The tension,
and the mistrust that gave rise to it, were high.”
Finally a lawyer threw down the gauntlet. “There’s
a philosophical difference here, and there’s no point in dialogue,” he stated
flatly. “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.” This was an opening for one
of the central tools of Convergent Facilitation: identifying the “non-
controversial essence” behind a contentious claim. Miki describes probing for
the principle underlying the lawyer’s position – he wished for each family to
be handled according to its specific circumstances.
When his opponents also affirmed this principle, the
unexpected glimpse of a shared purpose carried the group into face-to-face
talks. They spent one day converting their
arguments into shared principles that ranged from reducing familial conflict to
developing evidence-based solutions. After some feedback and tinkering,
their diverse constituents all endorsed the principles. The dialogue group now
had a common set of benchmarks for the laws they would be writing.
Convergent Facilitation
step 1: Translate each argument into a “noncontroversial essence” and collect
these as decision-making criteria.
Early success
Finding
agreement on common aspirations transformed the atmosphere in the group. “We started with deeply
entrenched views and distrust, and ended up with friendships and
understanding,” says Rep. Carolyn Laine. Many participants became
actively interested in finding solutions that truly attended to everyone’s
needs and hopes.
The next step
was for subcommittees to put the principles into practice. One committee
developed legislation that passed unopposed in mid-2014. “The legislative
changes were not earth-shattering, but they were confidence-builders,” says
Mike Dittberner, an attorney representing the American Academy of Matrimonial
Lawyers. “I knew the process was working when I was part of this small group
with perhaps the most avid advocates of equal parenting time” – the policy the
Academy had been fighting – “and we started coming up with baby steps that we could agree on.”
When some constituencies challenged one provision of the proposed legislation,
the group stuck to its commitment to only go as far as they could go together,
and submitted a smaller package.
Whenever the
larger group convened, Mike noticed that Miki’s facilitation kept them moving
forward.
“She wouldn’t allow somebody to go off tangent, and if
they were reacting negatively she’d try to probe why,” he says. “She’s trying to get that person
to come up with a solution rather than leaving a problem out there festering.
And she’s not just working with that person – she’s causing everybody else to
be more solution-oriented.” Brian Ulrich says these moments seemed
downright magical. “I don’t know what kind of pixie dust she threw in the
room,” he says. “At times where it appeared we were heading into a nose dive,
her process allowed us to pull out of it and reach even greater heights than
before.”
When talks
did get rough, the group’s shared principles served as an anchor. “We had the
most common ground when we would center on the benefits to kids. And we had the
principles to come back to and point to,” says Brian.
Convergent Facilitation
step 2: Develop new proposals that aim
to satisfy the shared criteria.
Converging on a solution
Buoyed by
progress, the group invited state custody evaluators and family therapists into
the dialogues. They set their sights on broader issues like child support and
the legal definition of a child’s best interest, as well as non-legislative
goals like improving access to family mediators.
But they had
yet to resolve the
stickiest problem, the one that caused legislative breakdown in 2012.
Brian recalls, “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.” More parenting time was what Brian’s group had
come to the table for. But the first round of legislation sidestepped it,
instructing judges not to presume either joint custody or sole custody.
Opponents still did not want to predetermine family court rulings.
Nonetheless,
some opponents now began advocating for legislative language to address the
concerns of people like Brian. While revising the list of factors used by
judges and custody evaluators to determine the “best interest of the child,”
the group reached a breakthrough. At the suggestion of a participant who had
always resisted 50/50 parenting-time prescriptions, they added a new factor: “The benefit to the child in
maximizing time with both parents and the detriment to the child in limiting
time with either parent.”
“That is
probably the only language that we all could have found good agreement on,”
says Brian. “And ironically, someone who stood so adamantly opposed to our
thinking was the one who put it out there.”
Mike
Dittberner explains, “Part of the reason the group was able to reach consensus
is because that type of
problem-solving was really facilitated by Miki. It occurred as a result of
a cooperative group effort, -thinking
and problem-solving right there on the spot.” Judge Bruce Peterson says this kind of
cooperation was the.” most
memorable part of the process: “It was so apparent , to me when people became solvers rather than position-staters
Convergent
Facilitation step 3: Problem-solve
until the group reaches an agreement that
everyone can wholeheartedly support.
Ripple effects
The revised
best interest factors form the heart of the legislation that passed nearly
unanimously in 2015. They aim to move courts from a parent- centered to a child-centered
view: for example, the former first factor,
“The wishes of the parents,” is replaced with “a
child’s physical, emotional, cultural, spiritual, and other needs.”
The Minnesota
Lawyer commented that the new law “is catching up with the last 40 years worth
of social science, in focusing on child development, conflict resolution, and
the importance of both parents in the life of a child.”
When
do we reach consensus?
For the
Minnesota dialogue group, consensus came to mean more than agreeing on specific
proposals. At the outset of Phase 2 in mid-2014, they established this
definition.
---
The group
will reach consensus on an issue when it agrees upon a single proposal and each
member can honestly say:
• I
believe that other members
understand what is important to me and my constituency.
• I
believe I understand what
is important to other members and their constituencies.
• I
believe the process as a whole
has allowed for all needs and concerns to surface and be included in the
development of this proposal.
• Whether or not I prefer this
decision, I support it because it attends to more needs and concerns than any
other proposal we explored, and because I trust the process that brought
us to this point.
---
Andrea Niemi,
a family mediator, says the legislation will change how she thinks about her
cases. “I’ve never been able to truly understand the old best interest
factors,” she says. “Every time I had to apply them I would go, ‘What does that
really mean?’ Now it’s much clearer that we’re looking at what’s best for the children.
And absent something pretty severe, I think we need to make sure that both
parents are substantially in the children’s lives.”
This clarity
is possible even though the dialogue group never went in the direction of a
legal presumption about parenting time. The beauty of the group’s solution is
that it does not focus on how much parenting time will actually be awarded –
that’s left to the family court system to decide. Instead, the new law focuses
on helping the courts work with each case to maximize the possible benefit to a
child of a relationship with each parent, as circumstances allow.
“I went in thinking it was going to be a disaster and came out with
hope.”
~
Brian Ulrich, parent advocate
Dialogue
participants are continuing work on goals beyond the statehouse. Brian Ulrich
heads a subcommittee on “cultural change,” tasked with educating lawyers and
judges about the new law. He says the relationships built through the process
support ongoing collaboration across the former political divide: “Miki’s
process not only makes it possible to find solutions – the doors have been
opened wide enough, and we’ve even developed enough friendship, to allow us to
accomplish these other items together.”
The
legislators involved see potential to tackle other divisive debates with a more
collaborative approach.
“We
discovered that if we take an issue we’re fighting over and dig deeper, we find
a way to say things that can work for everyone,” says Rep. Peggy Scott.
Advice to others
Warring
groups who want dialogue-based solutions should seek out a patient, focused
facilitator, advises Mike Dittberner: “Somebody who puts in the effort to make
people feel heard, and who has an outlook towards problem solving. Often what
that means, at least at first, is allowing people to vent a little bit, where
they are able to voice their frustrations with each other but do it in a way
that’s civil. You want a facilitator who has mastered that.”
Brian Ulrich
says the one thing he would tell other frustrated groups is “the importance of
trying this process in scenarios that look otherwise hopeless to solve.”
“I know there
are other very emotionally charged issues out there,” he adds, “but this one
had plenty of emotion and demonstrated that it’s possible. I went in thinking
it was going to be a disaster and came out with hope.”
In summary, Convergent Facilitation brought four key practices
to this group that moved them from “impossible” to “milestone achievement”:
• Searching
for the noncontroversial principles underlying people’s preferred solutions
instead of arguing with positions.
• Pragmatically
seeking language that integrates without ever trying to convince anyone.
Participants could maintain their opinions and
still achieve a breakthrough legislative package.
• Moving
beyond “sides” to look out for each other’s interests. More than once, people
pointed out that a proposal they themselves favored would not address the
concerns of another party.
• Overall
commitment to a solution that works for everyone, and nothing less.
