Mediation and Divorce: Understanding the Process

by CHIP ROSE, J.D.

Mediation can be described as a process which employs the neutral participation of a third person to bring two parties in conflict to a mutually agreeable settlement. As background to a discussion of the specific application of mediation to the divorce process, it would be helpful to look first at some typical relationship circumstances that tend to exist between spouses when they have reached the point where one or the other has decided to end the marriage.

When marital partners begin pulling away from one another, the most obvious symptom of the growing distance is a significant breakdown or loss of trust. As the parties literally pull back from each other (emotionally and physically), the space between them becomes a vacuum. As nature abhors a vacuum, it is predictable that something will inevitably fill that void. Given the absence of any meaningful communication between the parties, what grows unchecked in that void is Anxiety. Anxiety is the emotional response to "not knowing"--not knowing what the other person is thinking or feeling, not knowing what they are doing or planning to do. When no actions are taken to establish some method of constructive communication relating to the most mundane aspects of daily life (especially regarding to money and bills), and left unchecked, that Anxiety will eventually blossom into full blown Fear.

Once either party reaches this critical state, typically he or she will begin to take actions which are emotionally-driven and almost invariably contrary to his or her best interests. Typical of such decisions are the following actions: canceling credit cards or charge accounts; withdrawing or transferring funds from bank accounts; changing the status of beneficiaries on life; health or auto insurance policies; and ultimately, hiring a lawyer "to look out for their rights".

While these actions are seen by the party undertaking them as defensive, they are invariably experienced by the other spouse as aggressive and threatening. The natural reaction of the other spouse is to respond in kind, taking reciprocal emotion-driven counteractions. Like the phenomena of mirrors facing each other which create an infinite series of reflections, each party reacts to the counter-reaction of the other party. A mutually destructive downward spiral is generated and quickly gains so much momentum that it moves beyond the ability of the parties to contain it in any meaningful way thereafter. Not only are attorneys not capable of putting this fear back in the bottle once they are brought into the case, they are committed to follow policies and procedures of a system which assumes that the other side is an adversary and therefore to be treated with distrust and suspicion like any enemy in battle.

Because the basic problem flows from the psychological and emotional needs of the parties and is created by their lack of effective communication, the fact that the clients tend to hide behind their attorneys and that the attorneys take the dialogue to a more technical and complex level of legal processes, exacerbates the problem and all but guarantees that it will continue to grow in size and scope. The issues between the spouses become subordinated to the Legal Process. Since that Process is so technically complex, the clients immediately become completely dependent on their attorneys, effectively surrendering any ability to control the outcome. Solutions to problems, from the trivial to the most important, become overshadowed by the Legal Process. Effective communication between the spouses has been all but eliminated and in spite of all the actions taken by their respective attorneys, the parties undoubtedly feel more not less fearful and experience greater not lesser anxiety. And this is the way things will typically remain for them for the next year to a year-and-a-half which is the average length of time it takes for most litigated divorces.

So, what is wrong with this picture and why do things seem to deteriorate so very quickly notwithstanding the fact that almost everyone hopes to avoid this nightmarish scenario?

To find the answer, let us start by examining the circumstances at the point where anxiety exists (in the vacuum of the distance between the parties) but has not yet blossomed full-blown into Fear. Conventional wisdom, tradition and one's closest friends all encourage getting a good , aggressive lawyer to "protect" you. That advice requires one to put a great deal of faith in an unknown person and process, and to trust that "protection" is what will be achieved. The real question, however, is from whom and from what does one need protection.

The truth is that each spouse perceives the other spouse to be the one who is threatening. In acting on that perception of a threat, each party is an active participant in creating a self-fulfilling prophecy. Real protection comes first in the form of knowledge. Knowledge comes from the gathering and analysis of information. Analysis creates an understanding of one's options. Options create an opportunity to make proposals. Proposals allow negotiation. Negotiation creates an opportunity for compromise. Compromise allows agreement-making. Agreements resolve conflict.

Obviously, if the emotional forces can be controlled, these more pragmatic concepts can provide a practical and effective model for agreement-making. The traditional adversary approach using separate attorneys not only does little to address the emotional forces, it often ignores them completely until they create behavior problems. Then, the system's answer to these problems is to hammer them into Restraining Orders and assume that they solve the problems. In spite of all this, conventional wisdom encourages people to continue to believe that this system will "protect" them.

Unlike the adversary approach which is competitive negotiating system, mediation creates and encourages a collaborative effort towards problem-solving. It is ironic that with our children we work so hard to teach them to relate to one another by demonstrating solutions that foster sharing and mutually acceptable outcomes to their childhood crises. In our adult lives and relationships, on the other hand, we immediately opt for competitive, aggressive dispute resolution driven by anxiety and fear. Mediation offers a safe and sane alternative to the latter.

In mediation, the parties retain total and exclusive control over the process and the outcome. Nothing happens in mediation until each party gives his/her consent. It is the function of the mediator to monitor the needs of each participant so that no negotiating takes place until each party is empowered or capacitated with all the relevant information, knowledge and options and feels prepared to go forward with the negotiation dialogue. These two characteristics insure that individuals can succeed in making agreements in mediation without regard to their differences in skill, knowledge, understanding or capabilities.

Wives and husbands typically differ from one another significantly in these areas. Mediation allows for these differences in addressing the variety of need each party has in moving through the information-gathering and analysis stages an in preparation for the final phase in which the actual negotiating takes place. Real protection is agreement-making that is voluntary and based on full knowledge, evaluation and informed consent.

In facilitating this process, the mediator creates a safe and neutral environment in which the dialogue can take place, helps the parties avoid the emotional impasses and hot buttons which effectively kill any attempt at communication between the parties when they are on their own. Additionally, the mediator organizes the acquisition of information and analysis (whether provided by the mediator or gathered from outside sources) and monitors the progress of each in reaching the capability to carry on effective negotiations. The process is inclusive, not exclusive, which means that whatever each party needs to get to an agreement is looked upon as being a constructive step towards the desired objective--mutual agreement. For example, if either party wants independent counsel or a second opinion on any aspect of the process in the context of the mediation dialogue, that need should be recognized and satisfied in a manner which is consistent with the collaborative process.

Ultimately, mediation has succeeded for the many people who have used it for a number of reasons, among which are the following:

You can try a mediation session to see if you like it or if it will be responsive to your needs and still opt for a more traditional adversary approach if it does not. In reality you cannot similarly try, or sample, litigation. Once you cross that line, it is highly unlikely you can step back away from what has been started.

Mediation typically costs 30-40% of what two parties will spend on a traditional divorce with separate attorneys.

Mediation is a process of education and preparation that allows goal development at apace controlled by the participants.

Control is maintained by the parties with regard to all aspects of the process.

Success results from a thorough exploration and examination of all possible outcomes and is not limited to the narrower range of solutions required by the Law.

In summary then, the use of mediation to resolve disputes and reach comprehensive agreements allows the parties to control the process throughout, educate and prepare themselves on the issues and options before negotiating, keep open lines of communication during separation to prevent differences from developing into full-blown conflicts, spend valuable resource dollars on effective issue development and resolution avoiding wasteful and cost-ineffective processes and ultimately, guarantee that the outcome is one that is totally acceptable. Other issues and questions about the specifics of the process can be answered more fully during an initial consultation.