December 1, 2010
Written by Barbara J. Hill, Esq.
When a couple (or one person) decides that their marriage can no longer survive, how do they proceed? Most people are not ready or willing to climb the mountain of paperwork and face the numerous decisions ahead of them alone. For many, this is the first time that they will face this transition. For others, there are bitter recollections of their experience in a prior divorce or watching someone else’s painful divorce.
Mediation offers an alternative to the hostile, winner-take-all mentality that underlies the litigation arena. In the American litigation system, each side presents its most favorable view of the “facts” and, ostensibly, the judge comes to a “correct” decision. Unfortunately, this entire exercise requires that the other side be presented as monsters, somehow “at fault.” With enormous case loads and severe budget cuts, judges have only a small window of time to assimilate all of the evidence presented and make judgments that the parties will be bound to live with for the rest of their lives.
Alternatively, in mediation, each person helps create solutions that address the issues most important for that particular family: Who keeps which assets? What is “equitable” in determining who keeps which assets and who pays which obligations? Which holidays are spent with which side of the family? If Memorial Day is important to one parent, why not agree to honor that? In exchange, perhaps there is a different time that is important to the other parent. Or perhaps there is a sport or activity that is important to a child – how do parents want to respect that?
Mediation is voluntary – that means that no decision is forced upon anyone. You don’t agree and you aren’t bound unless you voluntarily decide to commit to a particular resolution. Another important, and often overlooked, advantage to mediation is that mediation plants the seeds to help people move forward with enhanced problem-solving skills. After success in mediation, parties are more likely to be able to resolve subsequent disagreements between themselves, and overwhelmingly prefer to mediate any future dispute rather than to litigate it.
Dr. Robert Emory, a psychologist at the University of Virginia, recently published a 12-year long study of couples randomly assigned either to mediation or litigation. Dr. Emery and his colleagues documented that, even with only a few hours of mediation, parents assigned to the mediation group settled their differences in one-half of the time of the litigation group participants. Even more important, the study documented far better outcomes for the children of the mediation group participants: parents cooperated on more issues in raising their children, non-residential parents had far more contact with their children, and residential parents reported far more agreement with the other parent of their children than those in the litigation group.
The participants in Dr. Emery’s study were young and low-income. The entire group was “high conflict” – each had filed contested custody motions. Participants were randomly assigned to either the mediation group or the litigation group. The families were followed for12 years. Of the litigation group, 75% had a judge decide their case. In the mediation group, only 20% ended up having a judge decide. (Remember, I said mediation was voluntary! However, even when mediation did not succeed, these parents mostly settled out of court with the help of attorneys.)
According to Dr. Emery’s study, after 12 years, 28% of non-residential parents in the mediation study saw their children weekly. While that may not sound high, it compares to 9% of the non-residential parents who litigated in Dr. Emery’s study (and 11% for the national average.) To put this in perspective, consider that some of those children would be adults and on their own 12 years later.
Using telephone contact as an indicator of continued involvement, Dr. Emery found that 52% of the non-residential parents in the mediation group spoke to their children at least weekly, compared to 14% of the non-residential parents who litigated the initial dispute (and 18% in the national average.)
In Dr. Emory’s study, the residential parents were asked to “grade” the non-residential parent’s parenting: Remarkably, in the mediation group, these parents gave their ex-spouses far better “grades: in every area of parenting (discipline, grooming, errands, religious/moral training, celebrating holidays, taking part in important parenting events and discussing problems with the residential parent) than parents in the litigation group.
Without doubt, the children of the divorcing parents in the mediation group fared much better than the children of the other parents in Dr. Emery’s study. The study identifies a number of reasons why: the parties “had a voice,” were asked to take a long view, worked together to find solutions and learned about their children’s needs and about co-parenting. Further, the mediation process provides a forum for the couple to recognize their own grief and to avoid acting in anger.
Working together for their children was the right thing to do, and it worked.
Please Call Our Office For Answers To Your Questions – 781.239.1600
