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In our society, classically the "legal" way to resolve conflict is based in an "adversarial system." The adversarial jargon tells a great deal of the story. Two "sides" plead their case before a "neutral" fact-finder, be it judge or jury. Your "side" is represented by counsel who will vigorously champion your cause, the "other side" by "opposing" counsel who will just as vigorously fight for their client. Retaining the "best lawyer you can get", or getting a "real barracuda" to represent you, are the catch phrases heard often in this arena. The goal is not necessarily getting a "just" result, but rather getting the "most" you can.
We are encouraged to "sue the bastard", or state "I'll see you in court!" when we don't agree on an issue. "Don't take the law into your own hands...take it to court", we are admonished on small claims television courtrooms, where our voyeuristic tendencies flourish as we watch unfold before us the details and minutiae of the personal lives of strangers.
At times, arguably, there is nothing better than a good fight, perhaps the modern day version of the "side show", or even the contest of the gladiators. The "taste of blood on the tongue" makes for an adrenaline rush, but the contest exacts a huge price on the contestants. In the case of the family and/or divorce particularly, the psychic and financial toll in "taking it to court" is usually enormous. People who have had business or personal relationships now are in the role of "enemy."
The former functioning relationship is replaced by feelings of mistrust and enmity as communications between the "parties" now cease, and the opposing lawyers become mouthpieces for their rageful, yet mute clients. The "issues in dispute" take on a life of their own and the humanity is all but lost in the contest.
So often, the contest rests upon which party can afford the most expensive lawyer, call in the most expensive "experts," or fund the litigation the longest, until one party settles or "cracks", or the judge decides their fate. Often, the parties are tired, drained emotionally, physically, and financially, and have lost sight of the clarity of their real goal. In fact, most divorce cases do settle, but many on the eve of trial after a great deal of money has been spent on lawyers and court costs, and they settle due to battle-weariness rather than a sense of equity.
Settlements made "on the Courtroom steps" or "on the eve of trial" are generally bad settlements because they are not reached in "mutual benefit," but rather because one party runs out of money, becomes intimidated enough, or so fears giving up control to a 'crap shoot" decision by the judge, that he or she just "quits." These settlements, for the most part, are grudging and hateful and often, the parties end up back in Court for one issue or another upon which the settlement is based.
When and if the case moves on to litigation, judges are faced with tough dilemmas in divorce cases, where they have to sometimes make Solomon-like decisions in child custody cases, or surgically and unemotionally divide the equities and split the assets of a couple without an understanding of what is really emotionally crucial to whom. Although the lawyers will zealously represent their clients in divorce cases (as they must) there are times when "resolution" is more urgently needed than "representation."
Increasingly however, and perhaps due to raised consciousness, a new spirituality or soulfulness, or simply to lessen the strain on our pocketbooks, alternative methods of resolving disputes are becoming more popular. On this classically oppositional landscape, particularly in the area of divorce and especially where children are involved, there is a small, but significant change on the horizon. This change involves a different mind-set that lessens the need or desire to "punish" or blame one of the parties when a marriage fails, and more focus on compassionate divorce.
This is a way of unwinding marriage with an eye and an ear towards damage control, maintenance of balance between the parties, and constructive building toward the future. If there is no hope for a marriage to continue and it is known that the marriage must end, then there still exists hope for a "good divorce" which is no longer just an oxymoronic phrase. This is the genesis of divorce mediation.
Divorce mediation, at its best, allows a divorcing couple to meet with a neutral facilitator in a non-threatening atmosphere of unconditional regard and talk about compassionate ways to dissolve their marriage with the focus being their best interests and those of the children. It allows each party to be heard, their fears either calmed or validated, and their hopes for the future noted.
This process allows anger and rage to dissipate enough so that each party can begin to "hear" the other and deal with balancing their own needs against the needs of the spouse, all the while being cognizant that this kind of process is in their own and each other's best interest.
Although mediated agreements are enforceable in court, there is one difference in the quality of that agreement; that is, that the parties have had a creative hand in determining their own fate, rather than putting their fate in someone else's hands who does not know them. Both parties have molded the agreement over time, so there is familiarity with it, and less resentment in carrying out its terms. I so often see "healing" begin during this process, even in the pain and wrenching of dissolving the marriage.
Mediation allows for the couple to understand the general state of the law on their issues, yet also allows time for each to voice the emotional issues and fears. Ideally, the mediator who is neutral (does not represent either spouse) will always walk the fine line of giving both parties adequate legal information without ever giving either party legal advice. It makes "informed consent" a cornerstone of the mediation process and makes parties take responsibility for their decisions. Once an agreement is reached both parties are encouraged and supported in taking the agreement to his or her own review attorney.
On the emotional issues, mediation also finds a fine line, which allows for some voicing or venting of emotional triggers, but does not become a "therapy session." The idea facilitating communication is that such communication is "gentle, but reality-based". It may take several sessions, for example, where the desire to divorce is not mutual, to divest the "non-initiating" spouse (the one who does not want the divorce) of the idea that the initiating spouse should not get any, or get less of the money or assets. The non-initiating spouse feels that this is "justice" because it was not he/she who wanted "out."
As society and the courts move toward a "no-fault" view (as many States have done) on the subject of marriage dissolution, discussing these issues in mediation allows one or both parties to gradually accept this notion. The "non-initiating" spouse may still be in denial and need time to digest what is happening, while the initiating spouse has been thinking and perhaps, planning the split for a while. I watch clients' faces often demonstrating a sense of amazement when they realize that in modern society, one cannot, in a humane sense, keep another in a marriage that he or she wants to leave. Human beings need support and time in these emotional transitions. There is no place for that in the courtroom. The key is finding the way to end the marriage with as little collateral damage as possible and when necessary, to encourage the parties to seek counseling to become healthy and to heal.
This is not to say, that as a process in its infancy, there are no problems with mediation. The problem here is that today's mediators run the gamut from those with no background in either law or psychology, or a background in one OR the other. Typically, a matrimonial attorney has no training in psychology, nor has he or she the time to "be a shrink" or "hold the client's hand" while the clock ticks the billable hours.
The psychologist or social worker may not have the legal knowledge to impart the detailed legal information necessary for the parties to make an informed decision. It is the blending of law and psychology that allows a mediator to cover all the bases such that the parties can make an appropriately informed decision while maintaining the emotional balance required in the mediation forum.
Additionally, there are times when couples must go to litigation notwithstanding the better alternatives. I will stop mediation in instances where there are subtle signs that abuse may be occurring between the parties outside the mediation forum, or if one party maintains such a hateful and irrational stance that no movement can occur, or if one party is intentionally hiding assets. I find those circumstances rare, however, and that most people approach mediation with respect for the process and gratitude that there is an alternative to the courtroom. For me and my partner, the physician's motto, "First, do no harm." is in our consciousness throughout the entire process.
When my partner and I became attorneys several years ago in our "mature" years, I had been a therapist for many years and she a practicing physician and teacher. Having seen so many marriages dissolved in a courtroom setting amid great animosity, and perhaps because we are both "heart" people, we decided to use our blended skills and experience to best advantage. We were fully aware that as attorneys, choosing mediation where possible over litigation was not as financially profitable for us, but the rewards have been far greater. It has been a wonderful choice.
The rewards of seeing people at the end of mediation, shake hands or hug and say to each other, "We are moving on, but I am not sorry for the time we had together" consistently makes me cry. The communication established in mediation between the spouses is left intact, which predisposes the couple to better communicate throughout all of their life passages and the life passages of their children. It is a more healing and holistic alternative to the courtroom.
Given that divorce is a reality of modern life, there should be a better process than litigation for dealing with the dissolution of so private and emotional a structure. Dissolution of a marriage is a wrenching experience and filled with psychic pain. Mediation is an excellent tool. It is about people helping people to "disengage" with compassion, communication, and caring.
In writing this article, I had two hopes. My first hope is that the quality of mediators will get better and that caring, thoughtful, and skilled individuals will take an interest in becoming mediators. Although mediating divorce is less financially rewarding than litigating divorce, the emotional and spiritual rewards are far greater than any I could have imagined.
My second hope is that divorcing couples will become aware that there are viable and constructive alternatives to litigation when they have decided to divorce, and that those people will seek out mediators of quality, knowledge, and heart. I hope that those couples will take the time to interview mediators with care for that mediator may very well be the facilitator in the dissolution of their marriage and that is not a position to take lightly. Divorce need not be the end of life, but the beginning of a fresh new start, starting with the divorce process itself.
New York does not automatically give custody of children to any one parent. In deciding custody, the court only considers what is in the best interest of the child. It considers who gave primary care during the marriage, scheduled doctors' appointments, and attended school meetings. Generally, the court allows the non-custodial parent ample visitation with the child and even awards joint custody. Visitation is often only limited in circumstances where there is abuse.
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