The problems discussed above created a perceived need to formulate another paradigm for the resolution of family law disputes, one that does not foreclose the possibility of reconciliation, does not increase the level of anger, allows the parties closure in their relationship with their dignity intact, and helps the parties effectively and peacefully co-parent their children.  That paradigm is mediation - utilized for many years in labor disputes, but not in the area of family conflicts until the late 1970s.

 

Mediation is a process by which a neutral party, the mediator, assists the parties in reaching agreements with respect to all issues which are important to them, e.g., custody, visitation, child support, property division, payment of debts, alimony, health insurance, life insurance, college, tax matters, etc. 

 

The protocol is straightforward: (i) identify the issues to be resolved; (ii) collect the information necessary to intelligently address the issues; (iii) look for options that both parties can accept; (iv) come to agreements that will meet the needs of both parties.  The mediator generally prepares a draft Marital Settlement Agreement for the parties who then take it to their respective attorneys for review. 

 

The approach is cooperative, not confrontational.  The attack is directed to the problem and not the other party.  The parties may resolve some issues and leave matters they cannot resolve for the court.  The process can take place with the parties alone or with their respective attorneys present.  If the parties are unable to reach agreement with respect to a particular issue, the mediator can help them assess their best and worst case scenarios if the matter were to proceed to court.  Having said that, however, we must be mindful of the old joke that, in a town in which one lawyer cannot make a living, two lawyers will do very well.  Court of Appeals Judge John McAuliffe was often heard to say that trying to figure out what might happen in court was like nailing Jell-O to the wall.  There are few absolutes in family law, but the mediator can provide a range of possible outcomes and emphasize that self determination is to be preferred over the uncertainty of a court decision.  No matter how meritorious your position, the vagaries of our legal system may result in a “loss”.  Unfortunately, what is important in a court trial is not what is true….it is what you can prove. Telling the truth is less consequential than appearing to tell the truth.

 

In mediation we prepare for settlement, not for trial.  In mediation both parties are heard, the mediator levels the playing field, and neither party is permitted to overpower the other.  In mediation we are mindful of the words of  John F. Kennedy that - "Our task now is not to fix the blame for the past, but to fix the course for the future," and Will Rogers' comment  - "I only worry about the future, cause that's where I expect to spend most of my time."  In mediation we remain cognizant of the definition of insanity - doing the same thing again and again and expecting a different result - and we endeavor to break that pattern of non-productive behavior.  In mediation we lay the groundwork for future communication between the parties and allow them to deal with each other in a civilized manner.  In mediation we address the needs and concerns of the parties.  In mediation we recognize that divorce does not end the family, it restructures it.  In mediation the happiness and welfare of the children are always uppermost in the decision-making process.   

 

Parties who settle in mediation are willing to accept outcomes they would rail against if imposed upon them by the court; and they are more likely to adhere to an agreement they have fashioned themselves.

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PREPARING FOR MEDIATION

 

When preparing for the mediation process, keep in mind that the goal is to address needs and not wants.  Avoid taking firm positions.  Don't draw a line in the sand from which you cannot retreat.  Address interests.  Attack the problem, not the other party.  Understand the emotions with which both parties are dealing.  Listen.  Be creative.  Decide upon your goals.  Consider the alternative to a peacefully negotiated agreement.  Perform a cost-benefit analysis.  Consider the following:

 

1)  AVOID - Avoid confrontation.  Remain objective.  Remain dignified.  Be pleasant. 

 

2)  ATTACK - Attack the problem and not the other party.  Remain cautious and skeptical, but remain willing to change your view when warranted. 

 

3)  ACCOUNT - Account for the costs of litigation if the case does not settle - both financially and emotionally.  Consider the impact on the children and on the future relationship of the parties as it relates to the children.

 

4)  ACCEPT - Accept the reality that the marriage is probably going to end and that a reconciliation will not take place.  Nothing interferes with settlement more than a situation in which one party has accepted the end of the relationship while the other party remains in denial and is not ready to move on.  Consider counseling if reconciliation is a possibility, or to help both parties reach closure in their relationship, or to improve communication between them, or to address communication difficulties or the problems that children encounter when their parents separate and divorce.

 

5)  ACKNOWLEDGE - Acknowledge the feelings, concerns, fears, needs and interests of the other party.  When a party expresses a desire for alimony, what you are most likely hearing is a profound fear of impoverishment.  When a party seeks more time with the children, the fear is often that the parent/child relationship will be irretrievably broken. Language is important. "You cheated me!" and "I feel cheated" send two different messages, evoke two different emotional reactions, and invite two different responses.  Be careful what you say and how you say it.  Speak neutrally, e.g., "Neither party will ......" or “Both parties will….”  Acknowledge that the marriage had good times; that the parties were successful in raising their children. Accentuate whatever positives there may have been.

 

6)  APOLOGIZE - the most powerful tool in creating a setting in which the parties can reach a settlement.  An apology has enormous emotional benefits for both parties and will create a positive atmosphere in the room, greatly enhancing the possibility of a successful outcome for both parties.  

 

7)  A FINAL WORD -  Parties who are experiencing separation and divorce are often overwhelmed with painful emotions - fear, anger, denial, rejection, guilt, shame, failure, grief, loneliness, despair.  Their ability to think and to act rationally can be greatly impaired.  Our courts are poorly equipped to deal with the emotional component of divorce.  Mediation offers a gentle and compassionate method of helping parties through the necessary process of dealing with their children and addressing property and support issues in a non-threatening environment.  Mediation is not therapy.  The process of working toward an agreement, of being able to see the light at the end of a dark tunnel, and of coming to closure with respect to the relationship is therapeutic and facilitates healing.

 

NOTES

 

1)  Many thanks to the late Dr. Will Neville of Asheville, North Carolina, minister, psychologist, mediator, inspirational speaker, for many of the thoughts articulated in this article.   

 

2)  Suggested reading:  

(a) The principled approach to negotiation utilized in family mediation is set forth in Getting to Yes, by Fisher and Ury. 

(b) With respect to the essential nature of conflict, the poem, Desiderata, by Max Ehrmann can be found at: https://www.desiderata.com/desiderata.html

(c) How to Win Friends and Influence People, by Dale Carnegie. 
(d) The Good Divorce, by Constance Ahrons, Ph.D., brings a refreshing perspective on a painful experience.

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