by Lynne C. Halem
Chapter by Dr. Halem for Edited Book in Progress With Working Title:
Everything You Need to Know About Divorce
© 2002 Centre for Mediation and Dispute Resolution
Whether it is called conflict resolution or ADR (Alternative Dispute Resolution), mediation has become the new “darling” of the media. Story after story heard over the airwaves, seen on the television screen, or read in newspapers and magazines cite the advantages of mediation. Mediation is: inexpensive, fast, private, creative…. And, the praise gets even more intense as mediation is viewed as a movement to end the explosion in litigation so denounced by all sectors of society, from the press to the president.
Mediation is not new as a process or as a concept. For generations people have informally and formally used neutral third parties to help resolve disputes. Today, however, mediation has been legitimized as a more formal process and a more structured proceeding. It is well suited to handling disagreements, ranging from international struggles and strikes on the one hand to the private difficulties of families on the other. It is within the family setting that parent-child and divorce conflicts figure most prominently in the ADR field.
Thus we come full circle to our particular interest, namely divorce mediation. The public has begun to realize that mediation of divorces is a reasonable, reasoned, and even humane approach to settling the many issues that arise when marriages dissolve. The logic is inescapable; follow, if you will:
Enter two people, called husband and wife.
Add, perhaps one or two children.
Add a house in the suburbs filled with furniture, furnishings, and possessions.
Add a bit more – a pension, some stocks, etc. etc. etc.
All of the above are the trappings of a marriage, the picture of a family. Divorce causes a restructuring, a reordering of this unit. Clearly this is not an easy task. Information must be gathered; decisions must be made. But, and the but is important, these two people — the husband and the wife — know each other perhaps better than anyone else. An intimate relationship unravels but years of living together builds a stockpile of information. These tidbits of a life together contain understandings of each other’s fears and concerns, of each other’s weaknesses and strengths.
In this awareness lies the secret–if not of how to save the marriage–of how to save the divorce. These two well-acquainted people need to use their knowledge of each other in restructuring the family unit and in the process of re-shuffling of property and debts. With knowledgeable guidance they might well reach decisions that enable each one to fashion a new life, as well as to provide the children with the continued support and involvement of both parents.
The so-called “win-win” solution does not mean that each person leaves mediation declaring to the world that he or she has won. To win, in its truest sense, is to beat someone else. There is no real victor in mediation. The victory is not only that there is no loser, but more importantly, that the agreement is workable and fair to all involved. The gain is multiple — shared by husband and wife and especially by the children.
How Does Mediation Work?
Mediation is based on the idea that the couple is responsible for making the decisions. Not such a revolutionary concept when you consider that it is the couple, not a judge, or a lawyer, or a mediator, who must live with the decisions. Yet it would be naive, even foolish, to assume that a typical divorcing couple, let’s call them, John and Mary Doe, are sufficiently knowledgeable to make such weighty decisions in a vacuum. Indeed, most couples are not even aware of what needs to be decided or what constitutes fairness, legally or otherwise. Obviously they need assistance. In order to help them the mediator must be knowledgeable about the factual areas of law, finances, and taxes, as well as about the psychology of families and interpersonal dynamics. Yet information alone does not a good mediator make. Indeed, the mediator must also be skilled in helping people to identify issues, explore options, and reach decisions.
Participation in mediation does not mean that the couple gives up rights to legal counsel. To the contrary, the divorcing couple typically seeks legal advice. Professionals are employed in the “mediation divorce,” as they are in the litigated divorce. The difference lies primarily in the assignment of responsibility. Thus, although the couple seeks the help of other professionals (mediators, lawyers, etc.), it is husband and wife, not the professionals, who structure the agreements.
Face to face, husband and wife identify the issues and fashion the agreements. They speak to each other and listen to each other. This process sets the stage for a future of communicating other issues and reaching agreements jointly. The parties learn to problem solve and to expand their field of vision in the search for optimal solutions. The key to success lies in learning to think of options that respond directly to each other’s needs and concerns. Mary Doe, our hypothetical wife, knows that John Doe, her hypothetical husband, is “worried about losing his retirement,” John’s words ring in her ears: “For fifteen years I have worked ten hours a day for that pension. You weren’t there; you didn’t earn it. There’s no justice in dividing my money.” “Keep your pension,” Mary proposes. “I’ll keep the house.” In this instance, there was a ready-made solution–sufficient assets were available to divide the “asset-pie” in a mutually satisfactory manner. While this is often not the case, there are usually still multiple ways to divvy up the seemingly “undividable.” What is a good alternative for one couple might be unacceptable to another. Agreements need to be tailor made to fit the unique circumstances and preferences of the people involved.
Divorce research clearly reports that people who have mediated their divorce have lower post-divorce litigation rates. The reasons are obvious. For one, couples have a sense of commitment to their mediated agreements. They are more likely to abide by terms that they themselves have created than those that are superimposed on them. Secondly, they have learned how to reach agreements together. Mediation techniques can be used by the couple themselves to adjust and modify their agreement as times and circumstances change. Interestingly, the vast majority of mediation clients do not need to return to mediation after divorce. They “own” not only the agreement, but also the process. Replete with a new set of skills that can be applied to future issues, the couple has learned the “tricks” of successful problem solving.
Perhaps you are still skeptical. Mediation may be great for your neighbors, but not for you. Let’s delve a bit further to see whether or not mediation is appropriate for you and your spouse.
Is Mediation Appropriate For You?
Many individuals view mediation as a wonderful idea, with a “That would be a nice way to do it, if only ___________________” disclaimer. The translation here is that the notion of joint decision making, of a “civilized” divorce, is appealing to many people, but few believe they have the ability to make it happen. For example, they may lament that:
–We do not communicate.
–We do not agree about money.
–We argue every time it comes to discussing the hard issues of money and property.
–We have very different ways of dealing with the children.
The above statements are typical. Yet, these characterizations may or may not indicate that mediation is feasible under the circumstances. To enter into mediation, you and your spouse do not have to be great communicators. Few couples are skilled in this area, although it is interesting to note that individuals often show improved communication abilities after participation in the mediation process. Indeed, people do learn how to communicate better. It is the responsibility of the mediator to help the couple to communicate openly and effectively. If either party refuses to listen or to contribute to the decision making process, despite the involvement of a skilled mediator, mediation should be stopped. It takes two parties to mediate.
However, it should be noted that, on occasion, where the presence of the other spouse is too painful for either party, a hybrid version of the labor mediation model may prove successful. In this instance, the mediator meets individually with one party, then carries the ideas, proposals, and the concerns to the other party. The goal is to reach an agreement by the mediator acting as facilitator and go-between. In this model, the mediator’s goal is to resume joint meetings as soon as it is feasible. The drawbacks of this approach are:
–It can be more costly, as it usually takes longer.
–It does not receive the benefit of the kind of creative exchanges that come from a joint problem-solving approach.
–It does not help the parties to learn to communicate more effectively.
The objection to mediation on the grounds that one party is too argumentative or volatile may or may not be valid. If argumentativeness is being used as a synonym for a form of active abuse, then mediation is not an option. Clearly, mediation is not appropriate in situations where fear of reprisal colors a person’s decision making abilities or where there is a dramatic imbalance of power. If, on the contrary, argumentativeness means that you and your spouse simply argue often or either one of you cries when you discuss the charged issues that need resolution for divorce, this is, in and of itself, quite typical. The mediator is responsible for guiding the couple in purposeful decision making, though people still may display anger or emotion. The severity of the reaction, both in and outside of sessions, will determine whether or not mediation can be productive.
Moreover, if you do not trust your spouse to provide full financial disclosure, mediation is not the right option for you. Both parties must, in a manner of speaking, play with the same deck of cards. Knowledge can be translated into power. Therefore, each of you must not only have access to the same data, but must also understand the information sufficiently to make decisions. It is unusual that two spouses will comprehend everything equally. In relationships people frequently elect to assume different roles and responsibilities. At the time of divorce, habits and behaviors that formerly worked well now place the individual in a disadvantaged position. One spouse, for instance, may not only be unfamiliar with the family’s finances, but also unable to handle money and financial matters. Women, in particular, often experience this difficulty. In order to be sure that the husband does not have an unfair advantage and that the wife learns the skills needed to be comfortable with money, the husband’s and wife’s agreement will be that the wife receives special “help.” This can be arranged through the other spouse, the mediator, a financial adviser, a lawyer, or other appropriate resource.
In the final analysis, only you and your spouse can decide if you, as a couple, are right for mediation. Remember that entrance into the process is voluntary and therefore so too is the exit. More importantly, you do not relinquish your right to other forms of professional help during mediation.
What Issues Does Mediation Cover?
Divorce mediation may deal with all issues, including division of assets and liabilities, custody and parenting, support (spousal and/or child), health care (insurance and uninsured costs), education (children and/or spousal), and taxes. It may also be purposefully limited in scope.
Some couples enter into mediation to resolve one issue. The most typical form of one-issue mediations pertains to the custody and parenting of children. In this area cases are often referred to a mediator by attorneys, judges, or therapists in order to give the couple the chance to focus solely on their children in a neutral setting. At other times, financial issues, such as reconciliation of debts or division of property are the focus of this kind of mediation.
Mediation is not limited to separating and divorcing couples. Couples often enter mediation after divorceto deal with an issue or a limited number of issues. Post-divorce mediations may focus on areas not covered or not adequately covered in the couple’s divorce agreement. They may also deal with a significant unexpected change of circumstances (for example, bankruptcy or relocation) or noncompliance problems in any or all areas covered by the agreement.
How Is the Mediation Process Structured?
Typically, an introductory session constitutes a couple’s entrance into mediation. At this time the couple and the mediator have an opportunity to explore together whether mediation is appropriate for them and what information needs to be collected. They determine which issues will be most troublesome and which ones will be the easiest to resolve.
In an introductory session, each party needs to assess his or her level of comfort with the process, with the mediator, and with his or her spouse in this setting. In particular it is necessary to feel that the mediator’s skills and knowledge are sufficient to ensure that you will receive the kind of professional guidance and input you need to help you weigh options and make decisions. Mediation is not intended to be a joyful experience, but it should at least be held in a nonthreatening atmosphere, one that is conducive to problem solving and communication.
Once the couple decides to enter into mediation, an agenda is set for the first meeting and required tasks assigned. At the close of each session thereafter, everyone should agree upon an agenda for the next meeting. At times, sessions deal exclusively with one topic, such as custody, and proceed through all aspects of parenting and guardianship. At other times, issues are combined in an attempt to reach a general agreement before there is a movement toward particulars. Financial issues most typically lend themselves to this generalized approach. In this case both parties might hope to reach a global agreement on the division of assets and liabilities, perhaps including alimony and child support as well. Experienced mediators are familiar with numerous approaches and can adapt style, process, and content to the needs of their clients.
Mediation is not therapy. It is not intended to be open-ended and nonfocused. Mediation takes work, hard work. Budgets need to be prepared, reviewed, and modified. Listings of assets and liabilities must be drawn up. Valuations of assets may require appraisals. Information, information, and more information are the ingredients of a successful settlement. In order to help individuals to think more broadly and to explore a variety of different possibilities and solutions, the couple needs to engage in research and the compilation of data. The mediator helps the parties to identify what information is needed and how to secure it. The mediator helps the parties use the information that they have compiled in considering each different option. Creativity does not occur in a vacuum. Creativity requires an understanding of the information collected and the ability to envision the implications of different courses of action. With guidance couples learn to understand their present and to project their future.
Mediation is not intended to be a prolonged and protracted proceeding. Despite the fact that people in problem-solving situations need to explore and review ideas, the process itself is usually quite circumscribed.
How Long Does Mediation Take?
The length of time mediation requires varies significantly from mediator to mediator. On the average, mediators quote ten to fourteen hours of session time for reaching a complete agreement in cases where there are children. However, it is worth stating that the time spent in mediation may well be within the control of the couple. People who do their “homework” in compiling data and reflecting on ideas and proposals can dramatically expedite the process, thus saving time and money. Others drag their heels, canceling appointments, resisting assignments, and procrastinating in their decision making. Occasionally people require more time to think about a particular agreement or to have it reshaped in order to answer their needs and concerns. For this group, a more protracted mediation leads to more workable and satisfactory agreement for all parties.
Cost too varies from mediator to mediator, with hourly charges following geographic differences similar to those of the attorneys in the locale.
What Do I Leave Mediation With?
Upon completion of mediation, most mediators draft a Memorandum of Agreement or Understanding. Depending upon the mediator, these documents may range from an abbreviated listing of major points of agreement, with sparse details (for example, the husband pays $ X to the wife until the child reaches age 22 or graduation from college), to a detailed document with comprehensive provisions for present and future terms and contingencies for handling changing circumstances over time.
The mediator’s style, preferences, and knowledge base will influence the final product. Regardless of length, the agreement should reflect the needs and the objectives of each family; in short, it should be unique to each couple. The issues covered may be similar, but the solutions should be molded to fit the family. Whatever the “shape” of the end agreement, couples are typically encouraged to have the terms reviewed by counsel and incorporated into a formal Separation Agreement (divorce agreement) for presentation to the court.
The miracle of mediation is that, despite anger, pain, and fear of the future, people do reach agreements that they believe are workable and fair. Even more laudatory is the fact that these agreements last. Certainly couples adjust and modify the terms as times and circumstances warrant, but the changes are rarely ordered by courts or overseen by professionals. The typical successful mediation client has learned to negotiate in his and her own behalf. The process has empowered participants to become decision makers, to shape their present situation and for each to take charge of his and her own future.
