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Mediation: An Alternative To The Ugly Divorce


By Lori H. Goldstein, J.D.

I sat on the floor recently at a birthday party for a friend of my three year old, chatting with a group of four other moms. When it came to light that all four were divorced single mothers, the conversation quickly turned to the colorful descriptions of the fathers of their respective children. The creeps have yet to visit on a regular basis, pay child support reliably or participate in a meaningful way in parenting. Three of the mothers were particularly exuberant in this discussion. The fourth quietly mentioned that her situation was not that bad - that she and her ex regularly share in the parental responsibilities for their two kids. They live two blocks away from each other, take turns dropping off and picking up their girls from school and work out child rearing issues.

A bell immediately went off in my head. This situation sounded very familiar to me. I asked the fourth mom if her divorce was mediated. She said yes. I was reminded again by a real-life situation of the benefits of mediation.

You may be wondering what kind of process can help smooth out the bumpy path to divorce: It is mediation - a nonadversarial, confidential process in which a neutral facilitator helps a couple negotiate a mutually satisfactory resolution to all of the issues in their divorce, i.e., property distribution, parenting arrangements and financial issues. In addition, mediation addresses extra-legal issues, such as how the parents will communicate and behave around the children. So, it is a cooperative approach to a comprehensive settlement.

How does mediation work? After hearing the parties tell their stories, including their grievances, needs and concerns, the mediator helps them explore ways of accommodating those needs that work for both of them and, especially, for the children. The mediator moves the parties away from a fight over their conflicting positions and instead focuses them on how they are going to interact in the future, in the best interest of their children. When the conversation is refocused in this manner, there is a surprising amount of overlap in what the parents need and this sets the groundwork for agreement.

A common misperception about mediation is that it is only for couples who get along. Actually, I have found it extremely effective for the high-conflict couple who is most susceptible to the escalating tensions of an adversarial process. All good mediators have an arsenal of tools they use to reduce anger, focus the parties on the relevant issues and move the couple out of their "stuckness."

Other benefits of mediation? It is much faster and less costly than going to court. The average mediation takes approximately ten 2-hour sessions, with a total mediator fee of about $2000. Of course, these estimates vary greatly depending on the complexity of the issues and the cooperativeness of the parties. As noted in a recent New York Times article, the average cost of a traditional divorce handled in court is $8,000-$20,000. And this bill may be run up over many months or even years as a result of lawyers delaying tactics and overburdened court calendars.

What is unique about mediation is that the mediator does not tell the parties what to do. She does not have the authority to impose an award or judgment. The process and the result are in the parties' control. As a result, couples have a real sense of ownership over their agreements. Since the parties agreed to the terms voluntarily, they are more likely to comply with them and less likely to end up in court fighting over a violation.

In my experience, the most remarkable aspect of mediation is how it benefits the children. Over and over again, I've had couples come to my office concerned about their children's poor school performance and general depression. They don't want Mommy and Daddy to split, no matter how badly they fight. They feel that all of the problems are their fault and that they are responsible for the break-up of the family. They try to win each parent over by playing them against each other. Or the children become the parents, taking responsibility for soothing Mom and Dad and making them feel better. They are terrified that if Mom and Dad can leave each other they will leave them too. All of their assumptions about the world as a safe place are gone. Anything can happen.

Sometimes, Mom and Dad are so caught up in their anger at each other that they don't see the extent of the children's pain. The younger ones regress and the older ones show anger or withdrawal. They all need loving, consistent attention and assurance that the divorce is not their fault and that Mommy and Daddy still love them. They need to know that they will still have a room with all of their things in a home that is safe and comfortable - no matter what.

In mediation, these issues are focused on intensely and the children are not forgotten. The mediator explains these phenomena to the parents and helps them work TOGETHER on how to help the children and how to best establish a loving parenting arrangement for the children. The parents often need reminders of how important it is not to use the children as a tool against the other parent. It is such an easy and effective weapon to draw that people do not even realize they are using it.

I've seen it repeatedly. After spending time in mediation working on improving communication between the spouses and with the children, the children do better in school and seem generally happier.

Is mediation for everyone? No. In situations with domestic violence, mediation is usually inappropriate. Since the process is self-determinative, both parties must feel comfortable asserting themselves with the other. Often, this is not the case in relationships with domestic violence. However, this does not mean that if there is a power imbalance between the husband and wife the matter should not be mediated. Mediators are trained to help correct power imbalances and use a variety of techniques to deal with these problems. This helps ensure that agreements are not only satisfactory to the parties, but that they are fair.

Remember, our kids learn not only what we chose to teach them, but, to a much larger extent, what they observe us doing. Why not give them a chance to learn something positive from the inevitably painful separation and divorce of their parents? Why not give them the opportunity to walk away with an understanding that conflict - no matter how deep it runs - does not necessarily spell despair, helplessness and out-of-control anger? It can mean resourcefulness and creative problem-solving - if you show them that it is possible. You may even see the benefits of these lessons at the next birthday party you attend with your children.

ABOUT THE AUTHOR
Lori H. Goldstein has been a professional mediator for over 10 years, specializing in family and divorce matters. She is an advanced practitioner member of the Academy of Family Mediators and a practicing attorney since 1985. Ms. Goldstein is also a director of the Alliance for Mediation and Conflict Resolution (AMCR), which is a group of professionally trained mediators with backgrounds in matrimonial law, business, accounting and social work

She can be contacted by phone at (973)921-1549 in New Jersey, (212)594-4115 in NY or
or Visit Web Site

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