Photograph by Kevin A. Roberts
Marta Papa’s brain isn’t the surprise; her father was a nuclear physicist who invented a metal needed to build the first U.S. intercontinental ballistic missile and atomic submarine. But he died young, of radiation poisoning, and her mother raised the three kids with a whistle and a yardstick. “The way you handled conflict was either physically or with punishment,” Papa says. “That’s all I knew when I went to law school, and it fit right in with law school.” The surprise came later, when she left trial law to learn interest-based mediation, an extraordinarily calm, civilized form of dispute resolution.
Papa acquired her nickname while recovering from vocal-cord surgery. One divorcing couple refused to wait or see someone else. The husband was prone to cursing out his wife, sending the negotiation back two paces every time he did. But when Papa spoke in a whisper, he whispered back. The profanity lost its sting, and they settled everything in two hours. When Papa told a friend, she chortled: “You’re the divorce whisperer!”
In law school, you excelled at litigation.
And I liked it, so my first job was trial lawyer for United Airlines in Chicago. I’d had enough of Texas. I went up to Chicago and set up 10 interviews in five days, and United was on Friday afternoon. I was just done bein’ perky and sitting forward. I asked if I could take my jacket off, and then I took my shoes off.
I guess they wanted somebody relaxed!
The job itself wasn’t relaxing, though.
I learned from the best: Skip Aikens, who’d been a trial lawyer for four presidents… I was involved in lawsuits with all of the major oil companies, because we got fined $1,000 every time we left late because the fuel was late. Skip always said, “Our goal is to crush the enemy.” He’d pound his hand when he said it. Then I remembered he was the one telling [President] Nixon whether to press the button or not. Anyway, by the time we got to the third company and he said, “Sue them!” I started taking alternative dispute resolution classes; there had to be a better way.
And how did your new insights go over at United Airlines?
Like a lead balloon. “Crush the enemy.”
What was the best part of the job?
I got to fly anywhere first-class for 5 bucks. I’d fly to New York, have a champagne breakfast on the plane, get a cab down to Bloomie’s, buy a pair of shoes, take in a matinee, get back on the plane for the steak-and-lobster dinner and be ready for a date by 7:30 p.m., wearing my new shoes. And it all cost me less than parking in downtown Chicago.
Why’d you quit?
I’d had a guy from Madison County courting me since college. When I couldn’t have enough fun on the weekend to make up for how miserable I was during the week, I finally said, “OK, I’ll marry you.”
You divorced 15 years later. Have you found that to be a common time frame?
I have. You know that “seven-year itch”? I push it way out now, to 15 or 17 years, when their last child is school-bound. The whole focus has been on the kids, and they needed each other to get them to soccer and ballet and take care of the baby—and now they realize they’ve lost their communion, their partnership. They weren’t accommodating to each other’s needs all along.
When you started, in 1994, how many lawyers were doing mediation in St. Louis?
I knew of only one, and he did barracuda mediation, where you threaten and twist their arm until they give in. It has its place in corporate and civil [law]; I don’t think it has any place in family.
So what do you do?
Transformative mediation, which uses the concept of interest-based negotiation developed by the Harvard Negotiation Project. The goal of all mediation is to get your clients to an agreement they both can live with. But I’m also trying to help them transform their relationship from anger and blame to cooperation, so they can more easily resolve disputes in the future without damaging their relationship. If you have children, especially, your lives are intertwined forever.
Why choose mediation over litigation?
As a lawyer, you go to court mad and your goal is to destroy the witness in front of the jury. Even when the judge decides—he gives the wife the keyboard and her spouse the mouse, and now neither of you has anything. Litigation gets people stuck, and it fans the flame of anger. People say, “I can’t wait till this divorce is over,” and I say, “No, you don’t get it. It will never be over.”
So instead of fighting the War of the Roses, you tend to everybody’s interests?
And you find ways to prioritize and balance them, instead of taking up positions and arm-wrestling to see who wins. Our legal system is based on positional negotiating. Mediation is really a slap in the face to the legal system.
And yet it’s taking hold?
In five states, it’s now mandatory in family law. It’s been mandatory in Illinois since January 2007: If a couple has children and does not have an agreed-upon parenting plan, they have to try mediation.
How’s that going?
I’ve trained most of the judges in Southern Illinois. On the fourth day of an intense five-day training, this judge in Madison County raises his hand and says, “Now are you telling me that we’re going to let parents decide their own parenting plan instead of the judge? That will never work!” Well, it’s worked 3,000 times for me.
So for judges, this is an exercise in humility?
One judge said, “Are you telling me I’m going to have to leave my bench”—which is like a pulpit—“and go sit at a table with them and figure out a parenting plan?” I said, “Yes, Your Honor, and you’re going to need to take your robe off, because you are no longer judging. You’re in the soup right with them.”
Why is there so much bitterness in most divorces?
Because there’s so much unresolved anger between them. And that’s why I wasn’t successful at the beginning, sitting behind my big-ass mahogany desk. I had to go back and get a postgrad degree in marriage and family counseling at The Menninger Clinic. That’s where I learned that the presenting problem is never the real problem. It may be a problem, but there’s another problem underneath it that’s silent, and you can’t resolve the issue until you find out what’s underneath.
How do you reroute those surface arguments?
I try to say, without sarcasm, “Do you realize you have just spent $50 arguing over a fork from Walmart? Have you just gotten caught up in the argument, or do you really need to talk about the fork?” I had a millionaire, owner of a company, argue that “she took the good muffin tins and left me the crummy ones.” Now, I don’t cook—I quit when I got divorced. My daughter was 11, and after a couple of months, she said, “Is the oven broken?” So I said, “What are the ‘good’ muffin tins?” He said, “They’re from Williams-Sonoma!” I said, “Joe, when was the last time you made muffins?”
How did you get past the muffin impasse?
I said, “If that’s what you want to focus on, we will never come to an agreement in mediation, because I think it’s not that you want the good muffin tin, it’s that you don’t want her to have it. That’s what litigation is for. Litigation is punishment.”
Do people punish each other because they’ve suffered, or just in spite?
Oh, they’re wounded. People who just want vengeance don’t come to me. If your goal is scorched earth, don’t give me your money.
How do you remind parents to think of their children and not only their own issues?
I bring them over to sit by the fire, no conference table, no barriers between them, and I say, “What are your goals for your kids in 10 or 15 years? Do you both want to go to the wedding, or are you going to set it up now where you have so much conflict and anger, you can’t be in the same room?” A woman said to me, “Well, I’m the good guy here. He had an affair. The kids are going to know that, so I’ll be the one at the wedding.” I said, “Your kids are 3 and 5. You don’t even let them pick out what to wear! Do you really want a 3-year-old deciding who’s the good guy and sticking with that forever?”
The fireplace is a nice touch, by the way.
And I play soothing classical music. I used to have Beethoven’s “Ode to Joy” in the mix, until a woman—she was just fine, she was talking, and all of a sudden she burst into tears. It was played at their wedding.
So many divorcing-parent arguments seem to be about logistics—who does what when.
When a woman says, “I’m not going to pick them up. Too bad you’re in Chicago—send a taxi!”—that’s not really about the kids. She’s just mad ’cause he brought a skank to the soccer game. That calendar the court hands out is a schedule for your refrigerator; it’s not a parenting plan.
Have you ever had someone get violent?
Oh yeah. I’ve had Jack jump across a table and try to strangle Jill. It happens maybe once every 25 couples. Enough that I wore out my first Taser—it was pearlized red; I felt like Mae West—and had to buy another one for $500. Usually all I have to do is shine that red beam, and it scares the shit out of them.
Do wives get violent, too? Yes, but with objects. Certain clients, it’s unsafe to have these [heavy bronze] candlesticks here. I don’t have a poker by the fireplace anymore, and I’ve got nothing that’s glass.
Anybody ever draw a gun?
I had a cop come in full uniform, lay a settlement agreement down on the table, place his revolver on top, and say, “Here’s my agreement for my wife to sign. I’m ready to mediate.” I said, “I’m sorry, that’s not called mediation; it’s called intimidation.” I picked up the revolver—hoping the safety was on, because I’d never touched a gun before—and put it in my lap. After that, I took shooting lessons. I don’t have a gun, though. My goal is not to kill a client.
Have any of your clients ever gotten back together?
Three couples. Each said it was because they mediated: “It was the first time we’d learned to fight fair.”
Have you reached any creative solutions in mediation?
Yes—and I didn’t think of this, my clients did: The children stay in the house, and both parents have apartments. They come and go, and the children stay put.
In some parts of Canada, a divorcing couple is sent to a team: a lawyer, a mental-health professional, and a financial expert. Why are U.S. lawyers leery of that kind of collaboration?
The lawyers are afraid the mental-health professionals are going to come in and take away their clients. Is there a deficit of conflict in the world? I don’t think so. It’s not a limited resource.
