November 1, 2011
Written by Lynne C. Halem
Why do separating and divorcing women shy away from divorce mediation? Surely, we cannot conclude that women are uncomfortable in collaborative settings. Or that women are resistant to processes that involve expression of feelings and ideas. Or that women are opposed to problem solving.
Psychology and sociology tell quite a different story. After all, it is women who are the predominant participants in support groups, who reach out to others in their endorsement of open communication and exchange of ideas. So, I ask again, why do women shy away from divorce mediation?
The answer is simple, if surprising. Women believe that mediation is something like a venus fly trap. The appearance is beguiling, but the results are deadly. Relatives and friends are the messengers who strive to protect the divorcing women, warning that they will only end up getting taken in the mediation setting, that their concern for fairness and openness will leave them holding the short end of the stick, and especially that they will trade child-related advantages for monetary exchanges. “So”, we should ask these good-doers, “what is a woman to do?” “Stick it to him,” they respond. And, “What if a woman is not the warrior type? What’s she to do?” “Hire a gladiator of course.”
Whether or not women actually buy this argument is less clear. The pressure is, however, great and often persistent. For example, one forty-five year old professional woman in mediation told how her father called nightly to warn her of the folly of her ways. He went so far as to offer to finance her divorce, providing not only funds but recommended a lawyer to spearhead the battle. For individuals going through a separation, the last thing they need is to expend more energy advocating for the “goodness” of their choices or to feel as if they are twelve years old again. They need supporters, not doomsayers.
But perhaps the most important questions to ask is what is the real scoop on mediation? Does it render women powerless? Do they get a “less good” deal because they picked the “nice” route?
Mediation may be a collaborative process for decision-making, but it is not based on an outer world philosophy in which legal entitlements and laws are trampled in the names of collaboration and communication. Participants do not relinquish their right to legal counsel. The law is alive and well in mediation. The approach is however different, as is the focus. In mediation, couples look at the well-being of the family unit, what it will actually take to forge new lives. Frequently the final agreements display creativity, “advant guarde”, ideas, and solutions. But, and the “but” is of prime importance, creativity does not translate into doing “less well” or “giving in.”
The true irony of the mediation process is that individuals often fare better than in the settlements achieved through legally negotiated or litigated divorces. Why this phenomenon occurs is both complex and surprising. Individuals engaged in the mediation process should be guided through a process in which they compile data on actual and projected expenses, contemplate and consider living situations, and collaboratively analyze available and projected resources. No one who truly wants to protect their family’s future should be bamboozled into blindly following formulas designed to squeeze all families into one model. No forward thinking business would follow a prescribed, routinized business plan and neither should a family. Couples need to recognize that tomorrow plays just as important a role in their settlement as does today. An approach based on real data and carefully analyzed future projections often results in “lighting bulb” reactions from so called opposing parties. “I see you cannot possibly make it on the amount of support produced by the formula.” Or, “Maybe we need to base our agreement on levels of support, providing more assistance until you get that business started (or finish your education or the kids enter school or ____________).” And so on. The point is not one couple’s decision to go beyond formulaic results, but for all couples to consider what is “their” reality, what works and, will in the future, work for them. Therein lies the secret of a skillfully facilitated mediation with an experienced and knowledgeable mediator.
There are real reasons why mediation agreements outlast litigation agreements. Why mediation participants attest to significantly higher levels of satisfaction. Why women (and men) feel empowered by the process. Why post-divorce relationships tend to be more supportive and children continue to have two involved cooperative parents. The answer is obvious. An agreement crafted from the hard work and the participation of two parties, not a battle waged in the name of justice or revenge, ultimately makes more sense.
It is the mediator’s responsibility to make sure that women and men have the knowledge and the know-how to make intelligent choices, that both parties understand their options and opportunities. It is each participant’s responsibility to structure an agreement, built on knowledge and understanding, that provides the supports necessary for each one to build a new future.
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