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Divorce Mediation - An Alternative

If divorce is the proper alternative for two individuals, they should be spared as much pain 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-- a feat accomplishment without the customary adversary-style anger, rancor and "go for the jugular" mind-set that is customary in contested divorces. There is no "contest" in divorce mediation; both spouses are looking toward the future for better lives for themselves and their children and not dwelling on the past hurts. Is a no-fault procedure in which the parties, guided by mediators, make binding contractual decisions. Depending on the particular circumstances, 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 provision to resolve future disputes.

Regretfully, for a variety of reasons, divorce mediation is utilized by 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 their respective attorneys and summons and complaint has been served. The majority of couples who do not take advantage of the innovative approach are too angry to sit in the same room with each other to civilly discuss their future. Thus, it is essential that attorneys and the public are informed of the benefits of divorce mediation which offers great financial savings, a shorter period of time--perhaps weeks vis-a-vis months or years, a reduction in stress, and personal control over your own life.

My wife, Iris, a social worker, and I, a practicing attorney, mediate together. This seems to have a very good effect on couples who, consciously or unconsciously, seem to feel mare at ease seeing someone of the same sex who they could relate to. We continuously assure, not favoring either party, but one that both can accept. We work well together, respecting each other's skills and judgment. Of course, we are very used to each other's company, being married for thirty-fur years and having raised three children. Our marital and child raising experience are vital experiential tools that we readily employ to help the couple understand their feelings and thus make viable Agreement decisions. We have also received intensive training in the divorce mediation process.

We hold the mediation sessions in my office, a non-lawyer type environment that has a couch, two comfortable leather chairs and a desk that faces the window. The couples usually sit on the couch, sometimes on opposite ends. During the first session, we lay out the parameters of mediation, explaining that we will help them make their own separation agreement, and that their future happiness is important and not their past problems. They, not the mediators, hold the key to a rational agreement that is fair for all. We then begin with an area of mediation in which we feel the couple will readily agree upon. Preferable, if the are children who have not reached their majority (21 years in New York), it is best to determine who will get physical custody because other aspects of separation hinge upon who takes care of the kids--possession of the marital home, possessions in the home, child support and equitable distribution. But, if custody is a contentious issue, we all may agree to start with equitable distribution of the assets, which, if successfully decided, would encourage the couple to proceed into other difficult decisional areas. 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 acquiescence.

It is important for both mediators to help set the agenda, be information agents for the legal or financial questions, and guide the discussion between the principals. There will be some heat in the form of anger and thrusts back to past hurts. We allow the couple to ventilate to a degree that is remedial but not counterproductive. They must express themselves, but also always aim at the golden ring--the culmination of a viable agreement that will bear the test of time. At the mediation stage, I am a mediator and not an attorney, but nevertheless am able to point out what the situation might be in an adversarial proceeding and what the courts could hold if the parents abdicated their right to write their own separation agreement.

We have found that this holistic way to look at the parting of two people has been very successful. Our hourly rates are quite reasonable and the sessions, generally lasting one hour, do not extend beyond a total of six. This, of course, depends on the complexity of the couple's situation, and their willingness to work together in and out of the mediation office.

Divorce mediation can be looked upon as a holistic legal and/or social approach to helping people resolve their own marital problems in a rational, prospective manner. The mediators must convince the parties to leave their baggage at the depot 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, a client, usually the woman, will telephone to inquire about the process. I patiently explain, on the telephone or in a face-to-face conference, how the mediation approach differs drastically from the adversarial. I then suggest that the other spouse call to speak with me so that he can get a first hand explanation and, also, perhaps more importantly, so that he feels he is an integral part of the decision to have mediation.

Both spouses, prior to the first session, have to believe that they are going to work on 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. Thus, conversations with both spouses beforehand can allay any apprehensions of discrimination. If this is not done, the mediators, at the first session, must immediately set the tone by earnestly explaining their even-handed, impartial roles. This foundation is vital for spouses to fully 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, will be ineffective unless they have the good faith of the participants.

Even if both spouses enter the session trusting the mediators, this will not last unless it is reinforced. Initially, it is very helpful that my wife and I are co-mediators, because it leads the spouses to, consciously or unconsciously, think they may have one of their gender for support. Thus, a male-female mediation team can effectively reduce tension and spousal fear of the intimidation. Based on the history of our society, the female spouse, often smaller in stature, weaker physically and earning less financially, may feel besieged. She may have been physically, emotionally and financially abused by her husband, whom she is now negotiating with in a mediation session. Moreover, many women, especially of an earlier vintage, not having experience in the politics of business nor fiscally sophisticated, are often not adept at the negotiating process. These factors put them at a decided disadvantage. This is often why women seek the help of attorneys who will negotiate for them and thus protect their interests. The root of the adversarial divorce process may well be the inherent sexual inequality in our social system.

The mediators, thus, must be very aware of the past history of the participants so that 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 carefully explain these points to both parties initially, and if necessary, repeatedly throughout the sessions. Such factors should be openly stated and not to be "sub-rosa"; a domineering male spouse must be made to understand that the agreement will not hold merely because his intimidated wife obediently agrees out of hidden fear with the terms that he presents. He also must be told the possible consequences of the alternative adversarial procedure, i.e., the high costs of the litigation, his paying for his attorney, as well as his wife's, at the possible hourly rate of $250, respectively, the crap-shoot consequences of a judge deciding equitable distribution, child support and maintenance, the public fiasco, the continuing anger of his spouse, and the certain detrimental effect an the children, with whom he wants to maintain a relationship.

The adversarial flip side can be a very strong deterrent and motivating force that drives the mediation process, but only if the mediators can fairly protect the interests of both parties. This is the great challenge of divorce mediation, which can be met with skill, sincerity and a desire to help people help themselves. Divorce is not pleasant, but there are alternatives for rational people to go on to a better life.

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