How In the WORLD Could Mediation Work?

Julie came from a wealthy family–grew up with that proverbial silver spoon practically shoved down her throat. Were her parents thrilled when she met Jim, whose highest vocational training had occurred at McDonald’s and who had never owned or rented his own apartment–and then shared the news that the two would be married within a few months?

Well, no, they weren’t, but they eventually got used to it, and accepted Jim into the family, tentatively, of course, but always made conversation with him at family parties when no one else was engaging him. And Julie taught him to enjoy the finer things of life–not that a Filet-O-Fish isn’t still one of the better foods there is, she agreed with Jim there (as who wouldn’t?), but still–and tried to find a number of jobs for him (none successful), but with parental help and her job in Daddy’s business, they lived a good middle-class life, even if it required serious parental infusions of cash straight into their bank account every few years.

Sometimes Julie felt her parents thought Jim was, well, beneath what she could have done, but throughout the years he’d come through for her in a lot of ways. She’d never felt attractive, had always been picked on by her parents and siblings for her weight, and Jim said she was just fine with him–beautiful the way she was.

Jim never found a steady job, so he did the domestic side of life Julie wasn’t great at–was a champ about diapers and bottles and mid-night feeds, packed great healthy lunches for the kids and her–took in both of their cars (gifts from Daddy, true) to be serviced so Julie didn’t have to.

Granted all this diapering and car-servicing didn’t raise his social class one iota in Daddy’s eyes, but for Julie fact that he made no money and contributed nothing that way would have all been fine–fine! Fine. It was when, after their third kid, Jim declared himself ‘restless,’ and restless-ed his way right on out of the house and the marriage that  Julie realized something she didn’t feel fine about. For when Jim walked, he planned to walk with half their bank account–as seemed reasonable to the divorce lawyer he spoke to, Jim asserted–and that money was mostly Julie’s Dad’s, partly Julie’s Mom’s what with her ability to pick a stock and hold until the money was needed, partly Julie’s from her job in sales in Daddy’s business–but if there was one person whose money that wasn’t? Well, that person was the one walking out the door with half of it.

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It would have been no surprise if Julie went to a high-power divorce lawyer–retained by Daddy–and explained her position: Jim had no right to the family money-and certainly not half of Julie’s account! The nerve!–so it was time to do whatever it took to remove that cash from his possession.

But here’s a real innovation of divorce mediation:

Mediation works to move the mediating partners from their strong-held positions to their needs and interests.

It turns out that more often than not, what the mediating partners say they want isn’t what they really want at all.

So ideally mediation is not compromise (I italicized that for some visual variety. Naw, not really. I did it because it’s a crucial concept here–it’s NOT compromise–and here comes the rest–more italics coming), it’s both people getting what they want. I’m happy to repeat that, because it’s such an innovative concept. Mediation is both people getting what they want–it’s just that they didn’t know exactly what they wanted when they started the process.

So let’s return to my clients Jim and Julie. In a move that impressed me, given Julie’s parents’ desire to go after Jim in court, Julie and Jim actually decided to try out divorce mediation first. And you might think this could never work. HE believes he deserves one-half of all their assets; SHE believes he’s taking what isn’t rightfully his.

So those are their opening positions. Not much wiggle-room, huh?

Well, here’s where a mediator better kick in. Because, remember, it’s not the positions–it’s the real needs and interests.

So where do we go from here?

Well, Julie begins by claiming Jim gave nothing to the marriage, and now he has the unmitigated gall to walk off with her and her family’s money.

And Jim? What does ‘the crook’ have to say for himself? Well, he actually has some points, points Julie really knows if she calms down enough to think about them. What about the years of diapers and bottles and healthful lunches? What about the carpools and the food shopping and the creative dinners he made? What about his years of cleaning the house after Julie fired the maid–and the laundry, and bed-making, and light-bulb changing and dish-doing?

More so–what about the years that he made Julie real feel okay about herself physically, instead of encouraging her engagement in a constant battle with her physical being? What about the conversations they had, when Julie expressed her frustration with her parents for their domineering ways with her, and worried that she wasn’t enough of her own person? Or when only Jim could make her feel better about her mothering skills when their oldest acted up, throwing food off her high chair, even onto her parents’ white shag carpet–even when it was a grape-jelly sandwich?

What if we posit that marriage is like running a business–and it kind of is, isn’t it? And what we each do in the marriage is our contribution–we’re business partners. So let’s say one person gave the cash, and the other person put in the sweat equity. Well, when that business breaks up, the person who put in the cash can’t just say (sadly for them), “Well, I put in the money, so I’ll take that all back, please. Thank you.” For the business is now more than the sum of its parts. Rather, when it breaks up, each is entitled to half of the existing entity.

In fact, according to a statistic from Chase Manhattan Bank in the early 90s, staying home and taking care of the kids is a significant, quantifiable financial investment in the marriage, using a certain algorithm. At that time Chase assumed it would be the wife at home, and thus the Bank claimed that it would cost between $30,000 and $60,000 a year to replace a wife (odd how large the range is, no? Does it depend on whether she packs Hostess Twinkies for school snack, or organic raspberries? If not–why double?? Curiouser and curiouser, as Alice would have said.).

And as I suggested the business metaphor, and Jim gave an accounting of his contributions, Julie, who’d come in angry enough to burn Jim at the stake, along with all his known possessions, softened beyond any expectation.

For really, as I analyzed the situation–and it is similar in every divorce case–Julie’s position of claiming Jim was a crook who stole what wasn’t rightly his wasn’t really the issue. She also didn’t need the money–between her job in the business and her financial enmeshment with her parents, she could easily recover from Jim’s taking a share in the pie. So her position was in essence just a need of hers to not feel that she’d been played for the fool, just as her parents had intimated she was doing all those many years ago when she’d first brought a burger-flipping boyfriend home.

And Jim’s position–a nasty quip that he deserved the money because he had put up with Julie and his in-laws for nearly 10 years–quickly boiled down to his own need to feel that his contribution to the marriage was, at last, recognized and valued.

So you know how this case ended? Exactly as it started–with Jim winding up with half of all the couple’s assets. The difference, and what I believe makes mediation so powerful and creative? It’s that each person felt okay about it–felt heard by the other side, felt heard by me, felt their contribution throughout the years had been realized and valued–felt good enough to shake hands and then hug as they parted, not friends, but as two equals, with no need for revenge.

Divorcing and Mediating, 101

Into my Julie-Andrews-let’s-start-at-the-very-beginning mode I leap. Do you actually know what steps you have to take to get a divorce? If you do, either let your eyes glaze over, or skip the next chunk. If not, it’s worth learning the following:

Let’s say, for hypothetical reasons (and because I rarely get to write in the second person), the person wanting to get a divorce is, well,  you.

Here’s what you do: You have a paper, called a petition, written up saying you want a divorce (there’s a lot of papers written in this world saying the obvious–just ask my high school English teacher daughter). This petition is filed in court. Your spouse is served the petition and gets a certain amount of time to–you’ve got it–respond in what is known as (this is true brilliance) a response.

Then comes the fun part. You and your spouse share all sorts of information, which is most likely the last thing you feel like doing. You share information about children and money and why you hate Newt Gingrich–you get the idea.

Detour: Here’s where mediation enters–and of course we’ll come back to that. Some places actually require the couple to attempt to settle their divorce this way. If you and your spouse successfully do this, you just sign a document that holds you to what you agreed (that is legally binding, by the way. Mediation isn’t  just play-time.). A judge reviews your agreement, approves it–and the divorce decree is handed down from upon high.

Back from our detour: If you can’t or won’t mediate, you and your spouse hire lawyers for lots of money to represent your sides and present your arguments about why she doesn’t deserve a penny and he shouldn’t get to see the kids until they’re 65 and losing their hair. It’s called an adversarial process, and anyone who has seen their friends use lawyers to divorce can probably attest the accuracy of the word ‘adversarial.’

If your lawyers are worth their very significant salt–and you aren’t completely impossible, or you’re not Heather Mills–usually you and your lawyer and your spouse and his lawyer finally write up an agreement. Some or all of you go in front of aforesaid judge–and, bang, you’ve got a divorce decree.

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If you’re filled with insatiable anger, or one of you is a gazillionaire, or you have a lawyer who has nothing else to do, this can go to trial. During trial, each of your lawyers again presents each of your sides–this time to the amusement of the judge–and now, instead of you and spouse deciding who gets what, the judge decides and now you have a divorce decree, detailing aforesaid judge’s opinions on who gets what where and when.

If one of you is SUPER-angry, you’re both gazillionaires, and/or your lawyer is still bored (or just happy riding the gravy train)–you could appeal the opinion.

But, seriously [and here’s an awful pun coming–my father would be so proud]: does this sound appealing?

So let’s go back to the detour, where you get to pick mediation.

And here you have it folks: the good, the bad, and the ugly.

Ready?

Your divorce mediator is not your therapist.

Whew–there, we’ve said it; it’s out there. Mediation is not a means to resolve past conflicts. There was a time and a place to work on old issues in the marriage–but it’s long over by the time you’ve gotten to mediation.

That’s right–you do not get to fight over past hurts during the process of mediation. I’m sorry.

So how does divorce mediation work?

Well, the mediator’s job in the divorce mediation process is simply to assist the spouses in figuring out the issues that matter most to them (really matter, not issues brought up to obscure the process), and then help set a path to resolving those issues.

That’s not to say the mediator’s a cold fish. Rather she works long and hard to help figure out what really matters, and to assist that change on behalf of the partners from, as explained in the post about Julie and Jim, from, unmovably-held positions, to underlying needs and wants.

Although some mediators are lawyers, there are no lawyers other than that present during the mediation process. The process itself is essentially a series of two-hour-long meetings at the mediator’s office. It’s just you, your soon-to-be-ex, and the mediator.

Unlike the situation with  a litigated divorce, in which most of your lawyer’s work is done when you’re not with her, here almost all of the mediator’s time (and thus incurred fees) is spent sitting in the presence of the couple. Each member of the couple can always see what step of the process they’re at–there’s simply much more economic and work transparency than is standard with an attorney.

And as the sessions go on–if that’s necessary; some couples finish rapidly–each partner can bring up situations that arise as the divorce process progresses, and hammer them out in mediation–rather than, for example. . .

  1.  you trying to raise your concern with your lawyer, who doesn’t call you back until you’ve almost forgotten why you bothered in the first place. . .
  2. who passes your message on to his opposing lawyer, when he gets around to it–and after they’ve discussed how en-enthused they are about this year’s American Bar Association Convention. . .
  3. Then when this second lawyer gets around to it on his end he calls your spouse, and, in this game of ‘Operator,’ his transmission of your message makes no sense.
  4. So your spouse, not having taken Gibberish in high-school, provides the response he thinks makes the most sense given that no one understands by this point what you actually wanted. . .
  5. Response: “Um, no.”

Thus each partner ends up feeling unheard by the divorcing spouse in an adversarial divorce–and sometimes shocked by what’s mandated in an over-zealous divorce decree, since they never knew these issues mattered to their exes at all–and the communication process was a complete failure.

The fact that mediators often react to issues the couple brings up is not to say that mediators don’t prepare.  They do–and will often come in with a check list that details a number of the issues that most couples will need to address as they go through this process (click Divorce mediation checklist to get an idea of what that might look like).

So you hammer it out–you get it done–and you’ve seen the advantages to doing it this way in previous posts.

Ultimately, all divorces must be approved by a court of law to become effective. But one more point for the mediation side: courts tend to approve a mediated settlements more quickly.

Now you’ve got the steps down–and, I don’t know: you could decide that you like prolonged fighting or have millions of dollars spending to keep away from your spouse, that you are in fact Heather Mills,  or you believe the legal profession is struggling in this economy, too, and it’s your obligation to keep them working.

Or maybe you just love the game of Operator where you communicate via four  people each time you someone has an idea (or that you have, indeed, learned to speak Gibberish and thus your spouse’s communication across two lawyers who have other topics on their mind is crystal clear to you–and the answer is still ‘no,’ of course. . .

. . .but if you don’t fit into the categories above, divorce mediation might just be your speed.

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For More Information On Divorce Mediation: 

The Research on Mediation? Yup–It Really Works

There’s nothing I find more satisfying than believing in something–and then knowing that the research backs me up.

When it happens the other way it’s a total bummer.

But I happen to be in luck on the topic of mediation, for not only do I think it’s a better way to go through your divorce than an adversarial or litigated process–apparently studies find that, overall, it is a better approach. It’s really my lucky day.

I’m tempted to really roll out the barrel and share every study I’ve found with you–but I’ll take pity, and just hand-select a few that indicate the proven advantages of divorce mediation. (I’ll expect undying gratitude in return.)

Joan B. Kelly, Executive Director of the Northern California Mediation Center and past president of the Academy of Family Mediators, wrote in her seminal paper “A Decade of Divorce Mediation Research” published in the July 1996 issue of Family and Conciliation Courts Review a summary of what 10 years of research on mediation has demonstrated vis-a-vis litigation.

Kelly suggests there are several important points to consider in arriving at a conclusion about whether mediation is an effective alternative to litigation. [She actually suggested that there were 8 main questions to be addressed but, in an effort to spare my readers–and just get to the point–I didn’t go through all 8 of her points. I do, however, recommend, if you’re interested in the topic, that you look at her paper and see a more complete analysis of the effectiveness of mediation. When you’ve got the time, drop by at Decade of Divorce Mediation Research.]

The rest of you can thank me for only addressing a  few points that I find particularly relevant here.

First, is mediation effective for divorce?

In Kelly’s meta analysis, where she examined research results from America, England, Canada, and some from Australia, she discovered that, statistically, couples reach agreement in divorce mediation from 50-85% of the time, with most studies in the mid to upper range of that percentage.

What that clearly indicates is that, out of 100 couples set to divorce–who are willing to mediate, we must remember–only between 15-50 them are forced into the legal system to work out their disagreements through the courts. Thus, clearly, mediation is an effective means of dealing with the clashing world views brought to the table by a divorcing couple.

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Now, how efficient is mediation in terms of time and expense?

The best study on this issue actually addressed custody disputes, as opposed to a simple divorce settlements.  In an unusual structure, there was actually random assignment of couples into mediation or litigation. In that study by Robert E. Emery [remember him from last post?] in 1994, published as a book entitled Renegotiating Relationships: Divorce, Child Custody and Mediation, Emery found that parents who were assigned to mediation reached resolution of dispute significantly more quickly than litigation parents, with–and this is pretty good, you’ve got to admit–mediation taking less than half the time of litigation, and costing less [see the astonishing savings mediation can offer in previous post].

Even in the case of the mediating couples who fail to reach an agreement (this does happen, you know, much as so many people would like to assure you that mediation is “no fail”), they were in turn more likely to settle before trial than litigating parents.

So far I’m pretty well-sold, I must say.

But wait, as they commercials, say–there’s more! Turns out that the mediation agreements have greater degree of  compliance than the divorce decree, whether that is in terms of child custody, financial arrangements, or spousal and child support. Emery found this in his work, as did Howard Irving and Michael Benjamin in 1992 in their study, “Research in family mediation: Review and implications.”

Andrew Schepard in his paper ” Kramer vs. Kramer Revisited,” put out by the Pace Law Review in the summer of 2007, writes  that parents are more likely to honor the terms of the mediated agreement “. . . largely because they feel they have a voice in its formulation. Parenting plans resulting from mediation also tend to be more detailed than those resulting from negotiations alone or imposed by a court, reducing the likelihood of future disputes.” A point for this side–there is only so much you can have your lawyers cram and stuff into a divorce decree–eventually it becomes ridiculous–while mediation settlements can  include many more specifics.

My take? Pretty nice.

 So what’s left to ask? Well, something pretty obvious, I’d say. It all sounds great, doesn’t it? BUT. . .

What do the couples who have undergone it feel about the process? [Aha–they don’t just love me for my sparkling looks, in my practice–it’s mainly for the perspicacity of my brain, as you must have noticed by now.]

So, Emery looked at this in his 1994 book, too, and Joan Kelly herself examined it in her article, “Divorce mediation: Characteristics of clients and outcomes” in Mediation Research’s 1989 issue.

Well, both Kelly and Emery independently found that studies comparing mediation and litigation couples consistently found that the mediation clients were more satisfied with the final outcome of the process than those who had worked out their settlements in court.

Probably if I asked you why you think parents found mediation more gratifying you could come up with a number of ideas. In fact, try it now, before you move on to the next paragraph. What is it about mediation that yields greater satisfaction?

Ok–you’re on your honor that you really tried to answer that. But I hope you did, so you can compare the answers that mediating partners gave for what they found helpful in mediation, that would not have been available in adversarial litigation.

So my guess is your ideas pretty much match what research shows: people appreciated  the ability to communicate to their soon-to-be-ex-spouse in a safe and contained setting [once lawyers enter, your communication with your spouse becomes extremely limited], they appreciated being able to express their viewpoint and ge heard, they were pleased with the chance to talk about the children and have their concerns validated.

All makes pretty good sense to me, and I’d say, ‘sign me up!’–

but as a mediator I’m already signed up. And glad to be.

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See:

  • If you’ve talked yourself out of mediation for one reason or another, you really must take a look at Eight Myths of Divorce  Mediation  to set yourself straight.
  • Another article worth looking at–this a 2001 piece by Emery et al–is Child Custody Mediation and Litigation (Emery 2001). Detailed, well-documented and thoroughly researched, this study has a lot to say about the status of mediation and what current studies–and meta-studies–show.
  • Joan Kelly: Divorce Research Inspires Start in Mediation. Take a look at Joan Kelly herself and hear how her own research led her to become a mediator. Listen in at  http://www.youtube.com/watch?v=dWMAYiCIEgo.

Mediation: Good For Me, Good For You, and Good For the Kids

 So let’s say you’re in a “what’s in it for me?” stance when the option of mediation is broached. It’s reasonable–you’ve been through a terrible time in your marriage, and you don’t want to get taken for a ride.

You’re really stuck: That jerk from the previous post told you for all those years he couldn’t take you to Hawaii and now. . . .! You WILL make him pay. As you ruminate on the Pacific-Island Betrayal, you’re more and more tempted to call your lawyer–true he costs $700 an hour after his $10,000 retainer (you nearly passed out when he said it, after thinking your hearing had gone–BUT. . . he swears a blue streak and pounds the table when he gets worked up) and sic aforesaid lawyer on your soon-to-be ex-spouse.

Satisfaction and Better Post-Divorce Relationships

But that might be shooting yourself in the foot, just for the satisfaction of some colorful language and watching your ex writhe. Researcher Lori Shaw in her study entitled “Divorce Mediation Outcome Research: A Meta-Analysis,” published in the summer 2010 issue of the Conflict Resolution Quarterly, found, after surveying a number of cases, that mediation yielded more satisfaction with both the divorce process and the divorce outcomeon both sides–and a better post-divorce relationship with the ex-spouse.

In short–you’ll be happier if you mediate, and be better able to reconstruct some sort of relationship with your ex-spouse, rather than stewing in hate–and isn’t that what you really what you want, as much as you think you want revenge?

Saving Money

Now, a topic dear to our hearts. What makes most of us happier than saving money? Money and happiness are forever intertwined in the American psyche. [Among my mother’s major moral teachings to her children was the never-to-be-broken, “Never buy retail!”–we would suffer indignities, possibly the poorhouse–and, of course, unhappiness at the error of our ways.]

Well, according to Money magazine’s July 2005 edition, an average mediation costs between $3,000-$10,000 (usually on the lower end), split between the two parties equally. By contrast, litigated divorces, with one attorney on each side, average $35,000, and, if you take it all the way to the courthouse, extra costs range between $20,000-$50,000.

So you’ve saved yourself–and yes, your bozo ex, too, but that’s part of the process, learning not to go for the jugular just to hurt another–a pretty penny if you mediate. It’s good for both of you.

Better Meets the Children’s Needs

 

But that’s not all. Let’s return to the topic of the children. Shaw’s study also showed that those who mediated felt that their children’s needs were better met through mediation than through a more typical divorce process. And that really brings us full circle us to our biggest concern–that our children be alright. Looks like they might have a better chance to succeed if you mediate than if you go the lawyer route and fight tooth-and-nail for each penny in your divorce settlement.

So. . .looking like you might have to forego the divorce decree.

But, you think, I don’t want this jerk raising my children. He cheated on me!

I have news that might have been shocking in a different era, but which makes perfect sense to our jaded sensibilities.  The court does not view having an affair as any sort of qualification for declaring a parent unfit, either for custody or visitation. Cheat away, they say, as far as parenting ability is concerned.

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Better Cooperation Regarding Raising the Children

I do understand that you might think your ex is hardly fit to pick out his own boxer shorts (but, never fear, his Hawaiian playmate will step in to fill your place–although she’ll never do it as well, I’m sure, dear), let alone raise your children, but your thoughts will not  jive with the court’s. So you and your ex-husband are bound together for a very long time by the task of raising your shared children.

Thus while it’s true you can try to think of every stupid thing he might do and put it in the divorce decree to try to stop him in an adversarial divorce setup (“Lawyer! Write that he can’t walk around in his underwear in front of the teenage girls. Write that he must provide a drink in the house beyond Diet Sunkist. Write that he can’t call the slut he’s marrying ‘Pookie!’ Oh! Put in there that he may never let my lovely daughter Louise actually call herself Lou-Lou and become a dancer. And. . .”), but it’s unlikely the decree will go through, you’ll look ridiculous–and how can you enforce it anyway? Can you really imagine taking your ex back to court again over a bottle of soda?

So, here’s my advice. Skip the divorce decree, with its demands and its efforts to control. You are going to have to learn how to work with this man for the sake of your children’s sanity, and it’s time to start–now.

Robert Emery, Ph.D. (more on him a bit later), after much experience researching mediation, published in his book The Truth About Children and Divorce a number of fascinating facts, but get this one: After only 5 hours of mediation at the time of divorce, a full twelve years later “the residential parent. . .who mediated, consistently reported that the non-residential parent discussed problems with them more and participated more in the children’s discipline, grooming, religious training, errands, special events, school and church functions, recreational activities, holidays and vacations.”

You want cooperation on his part in raising the kids, right?–and particularly grooming, given your 10-year-old son’s habit of showering bi-monthly–not always with soap? You want him to consult and discuss with you the problems of raising your brood–get your opinion, right? Then you might just have to forego that pound of flesh.

Sounds like, hard as it is to sacrifice the desire for it–it might be time to let go of the idea of revenge (and, clearly, any Pacific Island vacation), and sit down at the table  with this, well, let’s try to cut down on the name-calling now. Because, no matter what else he is, jerk, cheater, liar, you name it–he is also, and always will be, your children’s father, and that is one of the biggest reasons why you should try to work with him to make some sort of peace–and bring a sense of order and safety back into the lives of your kids.

See: