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Divorce in an Era of No-Fault - Litigate or Mediate?
Christopher W. Moore recently stated most accurately: "All societies, communities, organizations, and interpersonal relationships experience conflict at one time or another in the process of day-to-day interaction. Conflict is not necessarily bad, abnormal or dysfunctional; it is a fact of life." ’ Indeed, conflict I and the resolution thereof, is an essential ingredient in all of our lives. The issue for this work is not whether or not conflict is or is not a fact of life in the interpersonal transactions between people; for as long as there are people who may think, feel, behave or perceive things differently from others, there will be conflict. What is very much at issue however is the better means by which conflict over divorce and post-divorce matters are resolved.
There are several methods for resolving the conflicts involved in the process of terminating a marriage. The two primary ones are (1) adjudication and arbitration, hereinafter jointly referred to as the "adversarial system", and (2) private mediation. Mediation, which is our focus, is defined by Christopher W. Moore as "the intervention in a negotiation or a conflict by an acceptable third party who has limited or no authoritative decision-making power, but who assists the involved parties in voluntarily reaching a mutually acceptable settlement of issues in dispute." In this process toward conflict resolution, we see that the focus for decision-making is not the function of a third-party. To the contrary, the point of concentration (i.e., the work, decision making and responsibility) is internal - it is with the couple. There are many of us who would subscribe only to the private mediation way of handling/ resolving conflict. Michael D. Lang, J.D. (presently Director and Chair of the Dispute Resolution Division, Antioch University, Yellow Springs, Ohio) subscribes wholeheartedly to this posture, and many of Dr. Lang’s ideas will be incorporated extensively in the concluding portions of this article.
Is the adversarial system better able to effectuate a "fair" divorce, or does the mediation process offer the most promise toward that end? I would suggest that the answer to this most timely question is dependent upon the "client" who is to be served, and just who the true client is would seem to be a function of ones conceptualization of the true conflict. Also, I would offer that the "conceptualization of a conflict" is in turn a function of one’s epistemological view of the world; i.e., our thinking processes, belief systems and the manner in which we frame that which is perceived to be in conflict. (Is not my very own cognitions and belief systems a most positive correlation to the way I myself frame the essence of a divorce struggle and the manner in which I articulate this article?)
In such a vein, this author is a fervent gestaltist, pragmatist, and holist. A gestaltist believes that the response of an individual, couple, or group in a given struggle should be a response to the whole conflict, not just to it’s "mini-struggles." Metaphorically speaking, a response must be to a 64war", not just to the "battles" of a war. As a pragmatist, one subscribes to the belief that what is "good" depends on what "works"; not who is "right" - for there may be as many "rights" as there are persons to claim such postures. A holist is a person who purports that one cannot successfully treat or deal with a "part" of a whole without taking into consideration the indivisibility of the "whole."
Where the law of divorce is a part of a larger family law discipline and where we all are aware that the focus of family law deals with family issues of one kind or another, I would strongly suggest that no action should be seriously contemplated or initiated for any individual or couple without soberly considering the natural and probable consequences that such individual/couple designs will have on the family as a gestalt. I would purport to the reader that before one is able to consider the issues peculiar to any given family, that familial grouping needs to be defined for what it is and where-it-is-at in terms of both its generic and unique struggles.
A family is a system whose essence is a series of metamorphic configurations and whose functions can be understood only in terms of possibilities and tendencies. The family cannot be comprehended by reductionist notions. The family can only be understood in synergistic theories and holistic, albeit systemic, perspectives. To attempt to understand families through predetermined notions of family structures is tantamount to an exercise in the art of mythologizing. That manner of cognition became unacceptable at the same time Newtonian principles gave way to relativity theory and quantum mechanics. Family systems, like all systems, are in a perpetual state of dynamic restructuring. Such metamorphosis lays the seeds for conflict, for people understandably resist change. The process can indeed be a painful one. Conflict is a norm in the family life cycle; it is not an aberration away from it. Conflict may be positive and constructive, even though, to reiterate, it is most often very painful. Yet, has it not been often said that there is no gain if there is no pain - a legacy, I would submit, that was bestowed upon us "ab initio".
The true conflict is the forest - the gestalt. The parts, appendages or skirmishes within the forest are the trees. To see the trees and miss the forest is to suffer from "psychological myopia". Any form of myopic distortion will most often lead to confusion, frustration, and bewilderment. Such repugnant emotions characterize clients when they become the victims of well-meaning professionals who unwittingly offer paradoxical and contradictory advice based upon their own respective reductionist or ethnocentric paradigms. The systemic nature of the family can be treated effectively only if all known parts to the large conflict are dealt with holistically and as a gestalt.
One of the basic premises of the adversarial system is that justice is best served by an adjudicatory paradigm, but is it "fair" (whatever that word means) that a resolution be imposed on a couple by a third person? Or is it "fair" that two lawyer advocates "control" their respective clients in the legal process, as each of them attempt to predict what the courts would say given a certain set of circumstances? Is an agreement between the parties more likely to be implemented in "good faith" if it is imposed, or is "contract integrity" more likely to be derived through the hard work of negotiation between the ex-spouses to be?
My struggle is not with the adversarial system per se. The place of the adversarial system is most esteemed when it resolves any given dispute without giving rise to other problems in the process. However, when the adversarial process is employed to resolve a couples’ controversy, only to have its emotional backlash felt in subsequent step or extended families in which one or both ex-spouses may become a part, then I cringe. For example: Jack and Jill have been married for ten years and have three children under four years of age. Jack and Jill have several problems, money being one of them. Jack and Jill bilaterally decide to get a divorce in the State of Maine on irreconcilable marital differences. Jack commutes long hours to work from his home in Standish. He earns $325.00 a week. Jill has not worked and has not completed high school. Their, as well as her, living expenses run $325.00 per week. Jack, after leaving Jill, now has living expenses of his own. Neither has parents financially able to care for the kids. The problem for the court was the usual "simple" one of deciding just how much money to give Jill and for how long. The court has only to deal with this conflict and resolve it "fairly". But is resolution of the conflict really so "simple"? Although the financial "bottom-line" may indeed work for Jack and Jill, thanks to the benevolence of the State, it needs to be noticed that the adversarial process is seeking some semblance of fairness/justice. Yet, when we say the adversarial system of jurisprudence should be "fair/.just , " don’t we really mean "fair to us/just to us" or "fair to our side?" And does not the legal advocate unwittingly exacerbate the myth of fairness by reinforcing the perceived fairness of his client?
We need to accept the unsavory fact that "fair" cannot be determined - except from a particular view or bias. Do we really expect ex-spouses, whose own respective sense of fairness has been obliterated, to be "one" and in harmony for the purposes of raising their children and respecting the future family structure of the other? Whose fairness should we support, the innocent children borne of the marriage and their future familial relationships? Or do we attempt to indulge the financial resources of the couple? Do we "honor" the assets, obligations and responsibilities belonging to the dyad (or each of them) which has been armed with irrational feelings of anger, revenge, defeat, ad infinitum, ad nauseam? If one considers the first mentioned perspective to be more worthy of being cherished, is litigation or mediation the paradigm most calculated to reach that desired result? If this were your conflict and family, which struggle would you want to take priority, and which paradigm do you believe is most calculated to get what you need and desire?
Although my beliefs, as to the resolution of divorce conflicts, are very much skewed in favor of a "modified private mediation", such a process needs to be under the "monitoring guardianship" of the judicial adversary system. The adversarial process and the field of private mediation are not per se mutually exclusive; for if the adversarial system’s "locomotive" fails to leave the "railroad station of divorce" at the same time that the mediation "train" pulls out, the latter process could well spin its’ negotiating wheels and do nothing more than rev its engine in futility. The adjudicatory system operates with an innate "sword of Damocles". That "extortive- like blade" nicely motivates the couple to work hard and in good-faith for a mutually acceptable mediated resolution. As the processes of the judicial system regulates, administers and choreographs the dance of divorce, the couple is painfully, yet realistically, aware that an external resolution can and will be imposed upon them by an impartial third party (i.e., the judiciary) if they refuse to do the needed work. Additionally, "lawyer" involvement is also preferable immediately following the work accomplished in private mediation, and those legal efforts need to be implemented immediately after the private mediator and the couple have accomplished the majority of their work. Such a design is meritorious however only in situations where the respective consulting attorneys do not take an adversarial approach on behalf of their respective clients, save for the unmistakable apparency that severe injury could result to that client if the attorney failed to do so.
There are areas of content controversy and toxic sadomasochistic processes that occur between partners which may render the process of divorce mediation inappropriate or non-consequential (for future purposes). Although the overwhelming majority of divorce conflicts can and do need to be resolved through private mediation, fairness to the "tried and true" adversarial system (a "modus operandi" which has held many of us in good stead throughout the years) demands affirmation of the fact that not all divorce conflicts are "private mediation" appropriate.
For example, severely toxic ego-struggles between partners, or dyadic situations where there are gross power gaps (e.g., superior knowledge, emotional leverage, economic power, physical coercion) may render a private mediator impotent to intervene fairly with such psychopathological marital relationships. Especially where there are no children borne of the marriage, the traditional adversarial system approach may be more appropriate. Further, if one or both spouses are obsessed with "getting even", the parties will have very little chance to obtain a mutually acceptable divorce through mediation - for there may very well be, in these cases, way too many unresolved and hidden emotional agendas. In such matters, only an externally imposed resolution, or the certain threat of one, will bring the controversy to (at very least) a tentative end.
Second, we find ourselves identifying with the in-vogue psychological dogma which professes that "we" need to take responsibility for our own lives, nay, we need to "get a life", "get a grip" and ,.get real". Late twentieth century psychological mental health theory, thanks to the likes of such clinical theoreticians as Maslow, Rogers, Glasser, Bandura, Ellis, et alia, supports an age of narcissism and a posture of self-determination. Although the egocentric stance of the former posture can be alarming, a belief in self-determination affords us a greater sense of empowerment than the theories of Skinner and the pigeons he reinforced. Such a feeling of empowerment appears critical for an emotionally healthy existence in a world inundated with ambiguity and uncertainty. The labor of mediation would seem to fit so very nicely in a world which purports optimum human resource actualization and self-determination. Mediation advocates the individuals’ right to "determine", and self-determination is the belief in the innate right and ability of the disputants, who know more than any other about the conflict and the type of solution which will work for them, to fashion an agreement which will address each of the parties needs and interests.
In summary and in conclusion, mediation has developed out of the recognition that no one traditional discipline can properly address the concerns of the late twentieth century family. It has also developed in response to a growing belief that legal, economic, personal and interpersonal realities are inextricably connected. Mediation is an exercise in reflective epistemology. For example, the traditional legal paradigm may inquire "who will get custody of the children," where the reflective mediation stance is to encourage the couple to think in terms of "how will we each and together act as parents to our children after the divorce?" In mediation, the disputants own the problem - they are not encouraged to project it on to the other and get hopelessly tied-up with such hypothetical constructs as "blame" and "fault." Via the mediation process, the disputants assert control over the shape of the outcome and are empowered in the process. The result of "taking such responsibility and control," more often than not, spills over to a workable final product. Such a product most often translates into a Separation and Divorce Agreement which is more relevant, more durable, and more compelling.
When spouses seeking divorce in Maine have minor children, the court can order an investigation by a third party to gather information about the circumstances of the divorce, the parents and the children. This report will go to the court no later than three days before the hearing. Interested parties can request the testimony of the investigator. The couple incurs costs of all or part of the investigation if for any other reason than suspected abuse or neglect.
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