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Use of Mediation with Divorcing Couples

Thirty years ago, during my social work internship at the North Shore Child and Family Guidance Center, I worked with families in the midst of divorce and saw how the associated emotional, behavioral, and practical problems affected them.

The only available process of obtaining a divorce at the time was the adversarial process, in which an attorney represents each parent. This process exacerbated the problems. I wondered whether there was a better way, particularly protecting the needs of the children.

I heard about the application of mediation to separating and divorcing. I was to train with John Hayes, a labor mediator and arbitrator, who was married to a social worker.

A group of colleagues and I formed a peer supervision group, focusing on mediation. Since that time I have worked with several hundred couples, many of them referred by their therapists.

In the initial consultation, for which I do not charge, I state up front that the process is not therapy, but may be therapeutic. It is goal oriented, to come to a fair, workable agreement that satisfies the law, and is in the best interest of the couple and children (if any).

People don't get married to get divorced. When they come to me, their dreams and plans for their lives have hit a wall. I encourage them to identify the best available choices, given the reality of their situation.

The agreements reached by the couples are written in clear English as a Memorandum of Understanding. An attorney should then draw up the legal papers. The majority of couples elect to employ a neutral attorney for this task.

I don't ask for the history of what brought the couple to this point, however they often volunteer it.

Most couples meet hourly for between six to eight hours (some more or less). The sessions tend not to be weekly. Every other week provides the time to do homework assignments and some "mulling over." The agreements must reflect the movement past feelings or guilt and desperation as well. The agreements have held extremely well in the future. It is a rarity that I get a phone call about a difficulty with an agreement.

The process is efficient, effective and affordable, it enables couples to understand clearly what they are agreeing to and is completed in a reasonable time.

In mediation, we explore shared goals, tie into their adult part and move toward an agreement that is satisfactory to all, in the best way possible under the circumstances. This approach is different than negotiation where each gives something up and each is often dissatisfied. Negotiation may come in the final stage of mediation to get over the final hurdle. The agreement is always "under the shadow of law" and legal papers must pass the court's review. (It does).

In my mediation approach there is a balance between gentleness and assertiveness with humor. It requires patience and timing. At times I may function in a parenting role, sometimes saying, "I'm waving the red flag" or "calling time out" if their interaction is becoming too contentious. I try to share understanding with each party's concerns and emphasize what I see as the other party's same or similar concerns. I may kid them about sibling rivalry, or adolescent type behavior, being very careful about how this is perceived by them. I try to emphasize on those views they have in common, sometimes putting it off toward the end, or an impasse situation.

There are many issues about parenting. Many couples come in saying they want to have joint parenting. I emphasize that our goal is to have the best involvement of both parents, and that there be a joint decision on all major issues. The issues of primary residential custodial parenting are good to be discussed thoroughly. This includes access time, residence, transportation, and emphasizes cooperative, shared parental responsibilities.

When the couples come into mediation, I observe their interaction. Many come into the initial consultation wary, interested, sad or angry, or feeling like a failure. They may be cooperative or less so, controlling or not, and expressing interest in the welfare of the children (if any) or less so. They may be feeling anxious about the future and have a fear of not being protected.

It is always satisfying to see couples modify their emotions or behavior during the course of mediation. The focus on the practical elements influences the emotional parts. The "division of labor" in the marriage is rearranged.

In many couples, one has earned most of the money. That person or the other may be paying the bills. The higher earner may use that position as a control device with the other being placed in a subordinate position.

Often the "bread winner" states with bewilderment "this was the arranged when we married and I have worked hard at doing my part." The other says, "I do my part too, for the family, and I don't want to be in this position anymore."

As the process promotes civility and cooperation in the task-orientation focus, a number of my clients have stated, "if only we had functioned this way before, we wouldn't be in this place now."

There have been some couples who have called a halt to the process and have tried to "work out their marriage", often with the help of their therapist. Many contact me down the road to resume mediation.

There are couples that find that even in mediation they can't get past their differences and choose to then go through the adversarial process.

In rare instances I have asked permission to briefly step over the bounds of mediation to get them over a hurdle by interpreting what I view as underlying issues they are struggling with. This has been effective. Solutions are at times creative. One of my favorites was a solution to provide housing for the parents and five adolescents. They owned a house, but had a modest income. He was depressed, but would do all that he could to help with the house, wife and their children. They lived somewhat near water and dreamed of owning a boat that slept six. Solution; Home equity the house, purchase the boat. Housing was provided for all. He lived on the boat. His dream was realized. The youngsters loved it. Mediation was successful.

There was one time that, along the process, a couple asked me to switch gears and mediate an "Agreement for Reconciliation". I agreed. They first wrote a list of things they didn't want. I had them combine and rewrite the list to "what we will do." The result was a list of thirteen items that they would follow, and it worked.

The majority of couples complete the mediation process toward separation or divorce. At the end of the process frequently I get a strong thank you from each. This, of course gives me a sense of satisfaction.


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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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