Divorce Mediation
Neil S. Grossman, Ph.D.
Couples who want to divorce or are involved in a custody dispute have several options. They can go to court or use one of the forms of alternative dispute resolution: divorce mediation or collaborative divorce. The different ways of reaching a divorce agreementcan profoundly impact the couple and their family. In part, the type of impact depends on how much animosity is fanned by the process.Because marriage is a legal form of relationship, the final step required is to have all divorce and custody agreements approved by a court.
Whenever possible it is best for the couple to discuss many of the issues on their own. This is not always possible because of the strong emotionsevoked in ending their marriage. Strong emotions areespecially present if one spouse does not wantto end the marriage or if there has been an affair.It is usually important for the couple to consult a trained professional who can interpret and explain the intricacies of divorce and various parenting arrangements.
In the first option, the couple would each hire an attorney to represent them and conduct negotiations. Whether this will proceed smoothly depends on how the attorneys work and what obstacles occur. If the attempts at settlement become rocky the attorneys are likely to file motions and counter motions involving the court. This is the beginning of litigation which can be a lengthy and expensive process. The couple is likely to lose control of the process.They will probably find themselves waiting in court until their attorneys are called to have settlement conferences, frequently with the judge or the judge’s law secretary, and without the couple’sdirect participation. If the case goes to trial the judge will decide the future of the couple and their children, if any. (Problems encountered in obtaining a divorce by going to court are discussed in Grossman & Pruett, 2008.)
Collaborative divorce, one of the two alternative dispute resolution options, was discussed in two previous articles published in the SCPA Newsletter (Grossman, Summer 2009 & Grossman, Winter 2009)
Divorce mediation is the other alternative disputed resolution option. In New YorkStatedivorce mediationis a voluntary, non-adversarial process for divorcing, divorced or unmarried partners who are in a dispute that requires a legal resolution. Through a structured process, a trained neutral, third-party (the mediator) helps the couple reach a self-determined and reasonable agreement.In New YorkState the divorce mediator is someone who has completed at least 40 hours in an approved training program. Many divorce mediators are attorneys or mental health professionals. The consumer (or referring professional) should determine that the mediator has an appropriate professional background because this role is unregulated in New YorkState.
The divorce mediator helps the couple reach agreements by providing a structured process to assist them in reaching a mutually agreeable resolution. An environment is created in which the couple can state their goals and define their mutual interests. The mediator asks questions; validates and normalizes each person’s points of view; searches for interests underneath positions they take; and assist the couple in generating options for resolution. Each person is encouraged to recognize the other person’s needs. The mediator facilitates the process but is not invested in any particular outcome and usually does not offer advicethus allowing the couple to drive the settlement.
Once an agreement is reached the couple meets with separate attorneys to review the settlement and be advised of their legal rights. Occasionally, bringing the agreement to attorneys may cause problems and undermine the process. A typical example is that an attorney who reviews the settlement states that he or she could get a better settlement than what the person agreed to in the divorce mediation process, pushing the person into litigation. This possibility can be mitigated by using attorneys who understand and respect the divorce mediation process.
There are a number of possible problemswhen divorce mediation is used. The mediator’s goal is to have the couple reach an agreement. However, this could be without regard to whether the couple understandspotential problems that could develop with their agreement. A mediator could be too neutral in respect to not providing expert information that the couple may need to achieve a “good” resolution. In some instances it is important that the mediator go beyond just facilitating a settlement. The mediator should be aware that there may be power inequalities in the couple and the agreement reached may be unbalanced, favoring one person more than the other. While in some instances this settlement is what the couple wants any imbalances in the agreement should be made explicit. For example, a husband makes a very good living and states that he will provide comfortably for his spouse and does not want to trouble her with the details of their assets. If the spouse agrees, she may be unaware that given the size of the husband’s wealth she may be entitled to a considerably better settlement. In another instance, a person may have been unfaithful and because of guilt wants to give all the assets to the spouse. In either example, the settlement the couple reached is all right, but both should be aware and informed about what they are agreeing to. This couple may need expert information to be able to make appropriate decisions. This is especially important in decisions made about children. A couple might want to split the children, with each parent raising one of the two children. This arrangement may not be in the best interests of the children. In another instance,an agreement might call for structures that were not developmentally appropriate for a child. In one case for which I consulted, parents were divorcing and one parent plannedto live in the United States and the other in Europe. One of the parents wanted their 18 month old son to spend six months with each parent. Bonding, attachment and separation anxiety concepts in young children were explained to the parents.
I use a hybrid model in conducting divorce mediationusing an attorney and a financial specialist to assist. This is cost effective for the clients since each professional is focused on the aspect of the divorce in which they specialize (e.g., it would take me more time to do the financial part of the divorce). I work with an attorney who explains the legal rights and standards applied in court to the couple. After the couple reaches an agreement with my assistance the attorney writes their agreement in appropriate legal language. With all but simple finances, I refer couples to a financial neutral expert who reviews the finances and when necessary assists the couple with an understanding of their financial situation and the nuances ofthe various agreements they are considering. This is especially important because while the couple may have agreement on general aspects of the finances the financial expert can help them fine tune their agreement.For example, by considering tax consequences of how assets and debts are divided andapportioned the couple may be able to reach an agreement that will save them money.
Divorce mediation usually is the simplest and least expensive way to obtain a divorce. In a future article I will compare and contrast the relative advantages of divorce mediation and collaborative divorce.
References
Grossman, N. S. (Summer 2009). A Systems Understanding of the Collaborative Divorce Teams and the Family. SuffolkCounty Psychological Association Newsletter.
Grossman, N. S. (Winter 2008).Collaborative Divorce Practice, SuffolkCounty Psychological Association Newsletter.p17.
Grossman, N. S. & Kline Pruett, M. (2008). Changing the culture of divorce. The Family Psychologist, 24(3), 21-22.