What Is Divorce Mediation?
If divorce is the chosen action of a married couple, they should be spared as much pain, cost and time as possible. This can be done through the process of divorce mediation, in which one or two mediators help a husband and wife prepare their own separation agreement - without the customary anger, rancor and "go for the jugular" mind-set that is customary in contested courtroom divorces.
There is no "contest" in divorce mediation. Both spouses are looking toward the future for better lives for themselves and their children, not dwelling on past hurts. It's a no-fault procedure in which the parties, guided by mediators, make their own binding contractual decisions.
Such decisions often involve residency and legal custody of children, visitation, geographic restrictions, child support, maintenance (alimony), equitable distribution of personal and real property, allocation of debts and liabilities, tax implications, and ways to resolve future disputes.
Barriers To Divorce Mediation
Divorce mediation is utilized today by a only a small percentage of the couples that divorce. Some do not know that it exists, or erroneously believe that it is another form of marriage counseling. Others find out about it too late, i.e., they have already retained attorneys, and summons and complaint have been served.
The majority of couples who do not take advantage of this innovative approach are just too angry to sit in the same room with each other to rationally discuss their future. We believe it essential that attorneys and the public are informed of the benefits of divorce mediation:
- great cost savings
- a shorter period of time to get the divorce decree - perhaps weeks vis-a-vis months or years
- reduced stress for spouses and children
- greater personal control over their own lives
The 2-Mediator Approach
My wife, Iris, is a certified social worker. I am a practicing attorney. Together we mediate divorces. Our team approach to divorce mediation seems to have a very good effect on couples who, consciously or unconsciously, seem to feel more at ease having someone of the same sex to whom they can relate.
We work well together, respecting each other's skills and judgment. Of course, Iris and I are quite used to each other's company, being married for many years and having raised three children. Our marital and child raising experience are vital tools that we employ to help the couple understand their feelings. We have both received intensive training in the divorce mediation process.
Mediation sessions are held in our office, a non-lawyer home environment. During the first session, we lay out the specifics of what mediation is, explaining that we will help them make their own separation agreement, and that their future happiness is more important than their past problems and grief. The spouses, not the mediators, hold the key to an agreement that is fair for all.
Getting To The First Decision
We then begin with an area of mediation in which we feel the couple can most readily agree on. If there are children who have not reached their majority (21 years in the State of New York), it is best to first determine who will get physical custody of the non-adult children, because other aspects of separation hinge upon who takes care of the children -- possession of the marital home, possessions in the home, child support and equitable distribution.
But if custody is a contentious issue, the spouses may agree to start with the question of equitable distribution of the assets. If this is successfully decided, it will encourage the couple to proceed with other difficult decisions.
It may be necessary to have the children participate in a session -- alone or with one or both parents, to help determine a visitation schedule. Especially when the children are in their teen years, one must get their agreement.
Why Mediation Works Better Than Courts
Both mediators help set the agenda, act as information agents for legal or financial questions, and guide the discussion between the principals.
Usually, there will be some anger and verbal thrusts relating back to past hurts. We allow the couple to "ventilate" to a degree that is remedial. They must express themselves, but always aim at the shared goal - a viable divorce agreement that will bear the test of time.
At the mediation stage, I act as a mediator, not an attorney. But my knowledge and experience as an attorney enable me to point out what the situation might be in an adversarial [divorce court] proceeding, and what a judge might decide if the parents abdicated their right to write their own separation agreement.
We have found the methods detailed above are very successful. Our hourly rates are quite reasonable. Each session lasts 90 minutes.
Getting Spouses To Understand The Impartiality And Fairness of Mediation
Divorce mediation is a way to help people resolve their own marital problems in a rational manner. The mediators help the parties to leave their prior anger, hurts and frustration behind them, and enter the mediation room with a no-fault frame of mind.
Conversations with both spouses prior to their coming to the sessions is essential. Often the female spouse will be the first to inquire, by telephone, about the process. We explain on the telephone or in a face-to-face conference how the mediation approach differs drastically from the adversarial, courtroom approach. We then suggest that the other spouse call to speak with us so that he can get a first hand explanation and feels that he is an integral part of the decision to have mediation.
Both spouses, preferably prior to the first session, should understand and believe that they are going to work out their separation with the assistance of impartial, fair mediators. The non-initiating spouse must not feel that his mate has an "in" with the mediators because she initiated the process. Conversations with both spouses before before mediation starts can allay suspicions of favoritism.
At the first session, the mediators immediately set the tone by earnestly explaining their even-handed, impartial roles. This foundation is vital because it helps both spouses to accept and respect the mediators. The mediators' efforts in structuring the sessions, encouraging the participants to look forward, acting as resource people for legal and other matters, and helping find compromises when the session is at a standstill, are most effective when they have the good faith of the participants.
The idea of mediator impartiality is reinforced at each session. Initially, it helps that my wife and I are co-mediators, because it leads the spouses to feel they have one of their gender for support. Our male-female mediation team effectively reduces tension and spousal fear of intimidation.
Preventing Intimidation of a Spouse
The mediators must be aware of the past history of the participants so they can create a level playing field and help bring about a fair and reasonable agreement. Mediators must delicately balance their roles as impartial facilitators with their ethical responsibility to help bring an arms-length contract that will probably be incorporated in a divorce decree. They must size up the participants very rapidly, asking pertinent questions, watching body language and other telltale signs.
An agreement may not survive the future scrutiny of a court if it is later determined that a spouse was intimidated or harassed and thus did not willingly consent to its terms.
The mediators must explain these points to both parties throughout the sessions. Such factors should be openly stated.
The parties must be told the possible consequences of the alternative adversarial procedure:
- the high costs of the litigation, paying for two attorneys, at the possible hourly rate of $250 for each attorney
- the unpredictable consequences of a judge deciding equitable distribution, child support and maintenance
- the public court proceedings impact on children, friends, and business associates and customers
- the continuing anger of a spouse
- and the certain detrimental effect on the children - even adult children
The problems and costs of divorce court proceedings can be a very strong motivating force that leads couples to the mediation process, but only if the mediators can fairly protect the interests of both parties. This is the great challenge of divorce mediation, a challenge which can be met with skill, sincerity and a desire to help people help themselves. Divorce is never pleasant, but there are alternatives that help rational people to go on to a better life. An additional benefit of the mediation process is that often the parties get accustomed to working things out and have a greater sense of good will as a result of working together in the mediation sessions.
