Photo by Ed Isaacs / Dreamstime.com
Tex by David M. Stein
What can be said about divorce that hasn’t already been said? Few things are more destructive and painful in a person’s life than a divorce – whether you are the husband, wife or child involved. Divorce tears apart people’s lives, sometimes leaving a person emotionally distraught as well as financially ruined. The emotions – hurt, anger, disappointment, disillusionment – often make it impossible for the couple to work together.
As the couple battles, the real losers are of course the children who are not only caught in the middle but are often looked upon as the prizes to be won in a custody dispute. Battle lines are drawn and the goal of each party is to spill as much of the other’s blood as possible. And to make matters worse, the cycle of anger and hatred is fostered by our present system.
Litigation is expensive and adversarial. Costs can easily spin out of control and the parties can find themselves using up their limited assets to fuel the litigation process. The sad fact is that the average divorce in the New York area can cost between $20,000 to $30,000 and the husband and wife almost always settle. Only three percent of all divorces actually end up going to trial and judgment in court. Even in settlement, the parties have to contend with extraordinary attorneys’ fees. But a divorce that actually goes to trial will cost far in excess of that $20,000 to $30,000 figure and may take years to resolve.
The adversarial process is an expensive, time-consuming one. The very process creates an atmosphere of tension and dissention. The parties don’t cooperate because they view each other as the enemy. They are in fact adversaries, which is a synonym for enemies. Even the grounds for divorce can be contentious. In states like New York, which don’t recognize no-fault divorce, a divorcing spouse has to establish grounds for the divorce, such as adultery or constructive abandonment (lack of marital relations).
So what can be done?
There is a crisis looming which is only now beginning to be seriously dealt with by attorneys and the courts. The sad truth is that today most marriages end in divorce so it has become a part of the landscape of everyday life. For whatever the reasons, and they are varied, divorce is as much a part of everyday life as marriage. So the question is not what you can do to end divorce, but how do you make the process less damaging, less expensive and less stressful.
Mediation provides a viable alternative to litigation. While it is not a new method for dissolving a marriage, it is just now becoming a method of choice for many. Mediation allows the divorcing couple to arrive at a fair and satisfactory settlement between themselves, with the help of a mediator. The mediator acts as a catalyst, focusing discussions, facilitating exchanges, and serving as an assessor of positions taken by the parties. A mediator helps the couple focus on their needs—a benefit-based negotiation – instead of focusing on their wants – an emotionally clouded position.
Often the emotional element is fed by litigation, blinding people to what might be in their mutual interest. In court a third party decides the case – the judge or jury. In mediation, the couple is in charge of the decision making process. It is not an adversarial process like litigation. The mediator is not an advocate for either party and makes no decisions for them. Instead the mediator helps the couple explore all the choices and any accompanying consequences.
The goal of mediation is to enable the husband and wife to work together to reach an agreement. This is accomplished in two ways: First, there is full disclosure; nothing is supposed to be hidden if mediation is to work. This establishes trust between the husband and wife and sets a foundation for them to work together. Second, by using questions and guiding a couple through the process, the mediator slowly facilitates the mediation so that the couple stops dwelling on the past and any hurt either may have caused the other.
Instead they focus on a future where they will lead separate lives. In a case where children are involved, the mediator will help the couple realize that their future is one in which they will be separating their spousal roles, which are ending with the marriage, from their parental roles, which will continue as they will always be connected by their children.
Unfortunately, mediation is not always the first choice. It is not unusual to find couples considering mediation because they have exhausted all of their resources fighting each other and can no longer pay their attorneys who in most cases are paid from the same pot, marital assets.
Frequently mediation is chosen by default, when it should have been the first choice. Generally a couple should give mediation at least three sessions. Unlike a litigious divorce for which attorneys require a retainer of between $5,000 and $10,000, most mediators do not charge a retainer and so the couple has the option of leaving the mediation at any time if either the husband or wife feels it’s not going to work. However, generally, if a couple has been able to get through three sessions together, they will finish the mediation. The reason is that they start to focus on their needs – the reality of the situation – instead of getting bogged down in emotions and the idea of winning.
This is not to say that everyone just sits down nicely and comes to an agreement when they mediate. Divorce is extremely emotional. The parties are often filled with anger, hurt and resentment. In some instances, one party either feels betrayed or doesn’t even want a divorce and is in a state of shock that his or her spouse wants to end the marriage.
Often the first few mediation sessions are nothing more than an opportunity for venting. However, venting is totally acceptable, normal and a part of the process. The idea though is to get the couple to start working together to come to an agreement. In each mediation session the mediator will try to have the couple come to at least one agreement, even something as simple as agreeing to communicate via e-mail or by phone in the case of emergencies, until the mediation progresses to the point where direct, regular telephone contact can be reestablished.
The whole point of mediation is to give the couple the tools they need to communicate and work together. Often a husband and wife will find that they are cooperating more during the mediation process than they did during the marriage. If this sounds something like marital therapy, it’s because mediation is a melding of therapy and the law. Most mediators are either attorneys or therapists, but whichever field they come from, they have to unlearn certain skills to become effective mediators.
Attorneys have to remember that they are not representing either party and are not there to give client advice or tell the parties what they have to do. Therapists have to understand that they are not there to save the marriage, but to bring about an equitable break-up. This does not mean that a mediator cannot give legal information. But the request for information or advice has to come from the couple and may not be requested or offered to the parties individually. The role of the mediator as a neutral is necessary for the success of the process. If either the husband or wife feels the mediator is taking a side then the mediation will falter and ultimately fail. This is true even when the couple is involved in a co-mediation where there are two mediators working together.
In certain instances co-mediation has advantages. Usually a co-mediation team is comprised of an attorney and a therapist, one male the other female. The male/female dynamic can be helpful as can having both a therapist and an attorney present. Although it is more expensive, co-mediation is still substantially less expensive than a traditional divorce.
Because there is less of the anger and stress associated with litigation, mediation also tends to benefit the children in a marriage. While working toward a divorce, the mediation re-enforces the parental roles and tries to focus on what the couple believes would be best for their children. Parenting and custody issues are worked out between the couple, not through a court order. In the case of a non-custodial parent, there is less of a feeling of disenfranchisement because the non-custodial parent agrees to the parenting arrangement in a voluntary forum. The parties actively formulate a resolution instead of being told what to do.
The fact is that the vast majority of mediated custody and child support agreements are adhered to. Non-mediated custody and child support orders often result in problems and dissention. Also, with litigation out of the picture, there is less posturing for position. The parties are less inclined to make unfounded accusations like child abuse/neglect and spousal abuse that are often asserted in court to improve the complainant’s position before the judge or jury.
Of course attorneys are still part of the process in the traditional sense; you can’t completely escape the legal aspects, as divorce is still a legal proceeding. Throughout the mediation process, the couple is advised that if either party has any questions or concerns he or she should seek the advice of an attorney. Once an agreement is reached a Memorandum of Understanding is drafted setting forth that agreement. This is a nonbinding unsigned statement setting forth the couple’s agreement and is used by nonattorney mediators. This Memorandum is then turned into a Settlement Agreement/Separation Agreement by an attorney selected by the couple. Of course if the mediator is an attorney this step can be skipped because the attorney-mediator can simply draft the Settlement Agreement/Separation Agreement.
Furthermore, an attorney is needed to draft and ultimately file the divorce in the court with a summons and complaint. However, these are all steps necessary in any divorce and are not the costly part of the process. It is the traditional litigated divorce that requires the massive investment and depletion of marital assets.
Mediation is certainly a viable, cost-effective alternative to the time-honored slugfest known as a conventional divorce. In mediation there is no first shot fired with a summons and complaint setting the tone for battle lines to be drawn. The couples entering into mediation work toward the goal of a negotiated settlement.
Yes, there are cases that will end up in court no matter what. Mediation doesn’t work for everyone, but it does work in the overwhelming majority of cases. It should certainly be tried because the benefits are quicker, more amicable dissolution of the marriage and an increased likelihood of compliance with the terms of the settlement agreement. The process is less stressful and thus healthier for the children, healthier for the individual spouses and finally healthier for the marital assets that ultimately are used to pay for a divorce.
About the author: David M. Stein, an attorney in Garden City, N.Y., and an experienced mediator, is a principal of the Long Island Mediation Group, Ltd., certified by The Center for Mediation and Training and a member of The New York State Council on Divorce Mediation. Email:firstname.lastname@example.org.