By Diana Shepherd
The mediation process, also called Alternative Dispute Resolution (ADR), requires two individuals who are willing to look past their emotions and, in a spirit of cooperation, find the best solution for their unique situation. Mediation is not a magic pill — it can’t turn a terrible situation into a good one — but it can help to create a future everyone can live with.
“Hands down, mediation generates far better results for a client than litigation as long as both parties actively participate,” says Martha Bourne, an attorney and mediator in Houston. “The mediator helps level the playing field, whereas in the courtroom, one party can easily outspend the other.”
Successful mediation requires the cooperation of both spouses. There has to be some communication between you and your spouse, or at least a willingness to focus on the issues rather than on your emotions. You and your spouse must be willing to make concessions, and at times compromise, to find a workable solution. Both parties must understand that everything discussed at the mediation table is in the best interests of the family. If both of you are committed to resolving your conflicts, the rewards of mediation can outweigh the effort required to talk and compromise.
While statistics vary, couples are generally more willing to comply with the terms of a solution they have drawn up themselves than one that has been dictated to them. According to Carol Griffin, a Houston-based lawyer-mediator who practices with Maureen Peltier & Associates, mediation has gained in popularity because “it’s more creative and allows for more control over the outcome. It can also be less expensive and time-consuming than litigation or settlement.”
Mediation is not intended to bring you and your spouse back together. If there is still the possibility of reconciliation, you should seek marriage counseling or therapy. The process of mediation helps draw up a blueprint for living apart; the mediator’s job is to help each of you get on with your lives as separate individuals.
Separating the emotions from the issues
Not every divorce agreement can be reached through mediation. It requires a great deal of commitment and energy to find the solution that’s right for your situation. Some couples aren’t able to divide the emotions from the issues, and this can cause problems. “If either party is unable to think rationally, or operates only from their emotional bank, then it is difficult — and may be impossible — to mediate the case successfully,” says Bourne.
In one case, a divorce could not be finalized because both parties were fighting over the bath towels. There was nothing special about these towels — they were readily available in any department store. But this couple wasn’t fighting over the actual towels: they were fighting over what the towels symbolized to them.
You will also find mediation difficult if you can’t place your trust in your spouse’s perspective, motivation, or intentions.
During mediation, your emotions have to take a backseat to the tangible issues. Which spouse will stay in the family home? Who will be paying the bills? And how will you share your children? If one or both of you isn’t sufficiently in control of your anger or your sadness, maintaining focus on the issues may be too difficult. For some, keeping emotional issues off the mediation table is impossible. And sometimes, neither of the parties involved is prepared to meet again and discuss the issues.
Avoiding “you vs. me”
The process of divorce is one of the most difficult times in a person’s life, and finding the energy to work towards a mutually cooperative agreement is sometimes impossible. A legal solution, worked out between a judge and lawyers, may seem an easier course of action.
However, mediation does offer a way to avoid the ugly conflicts that can arise in divorce court. The court system often polarizes the parties, and the very process itself causes them to fight about the issues. Mediation lets both spouses decide what is best for themselves and the children, if any; the divorce agreement is worked out and mutually agreed upon by both spouses, who are working from the same side of the table rather than opposing sides of the courtroom. “Mediation gives clients the sense that they can work through their own problems,” says Griffin. “It allows them to have a sense of control over their own outcome — in terms of how to end their divorce and how to begin their future as co-parents.”
However, some people may need the symbolic confrontation of the courtroom in order to complete their emotional divorce.
Mediation may not be for you
“I’ve seen mediation become very difficult when domestic violence is an issue,” Griffin explains. “There’s an unlevel playing field. Even when the spouses are in two separate rooms, the abused spouse often feels intimidated by the other and think he/she needs to settle so the abuser won’t get mad. If one or more of the parties is heavily involved in alcohol or drug abuse, it’s a question of clarity of mind. It’s not impossible to mediate a case in this situation; it’s just more difficult.” And Bourne adds that cases in which one or both parties have severe mental illness should not be mediated.
In many cases, one spouse is dominant and the other passive. A good mediator will be aware of power imbalances and compensate for them, evening out the weight of power on each side and promoting discussion. “A mediator should deal with a power imbalance by helping the less powerful person to feel more of a sense of power,” says Griffin, “either through the attorney or by helping him or her to feel that they’re going to be listened to, their opinions will be heard, and hopefully their needs will be met in the mediation process. This can also be dealt with physically, with the parties in two separate rooms, so that the less powerful person is more comfortable to speak openly with the other not present.”
Benefits of mediation
Mediation can have a number of unforeseen positive benefits, such as:
It costs less than going through a lengthy divorce trial. Once a mediation agreement has been reached, the final contract must still be approved in court. However, because the agreement has already been approved by both parties, the length of time spent in the legal system is lessened, which generally reduces legal fees. The mediated agreement has been created by both of the parties to suit their family’s needs, they may find it easier to accept and respect than one reached in a courtroom. “Parties maintain control over their own divorce, rather than letting a judge or jury make significant decisions for them,” says Bourne. Mediation often teaches couples new communication techniques that can help them to avoid future difficulties. These new skills are particularly valuable when children are involved: successful co-parenting requires open lines of communication. As time goes by, changes may occur in your situation, and the agreement may need to be changed as well. Should there be a need to change the contract, there is already an established framework for communication.
“Children do not get caught in the middle as badly,” Bourne says. An amicable, negotiated resolution is less harmful on the children, especially if they have input into custody issues. And keeping things friendly between ex-spouses makes it easier for them to co-parent. “Future relationships can be maintained.” “Clients get a sense of empowerment and well being,” says Griffin. “They’re able to work out their own problems and learn a way to resolve things without being adversarial. If they have legal problems later on, they know they don’t necessarily have to litigate them. Parents come away feeling that they are co-parents, no longer adversaries. They can parent their children together with no adversarial litigation on their minds.”
With mediation, the rewards — monetary, emotional, and psychological — can often outweigh the time, effort, and concessions necessary to make an agreement possible. If your hope is to find a peaceful future with your soon-to-be-ex spouse, the trick is finding a mediation solution that works for you. As Bourne puts it, “Going through divorce does not have to mean one party ‘wins’ and the other ‘loses’. Both parties can win.”
Look for someone you can trust and communicate with, and who is empathetic to your concerns. Don’t pick someone lightly, or based on the cheapest rate, because he or she will be helping you settle on terms you may have to live with for a long time.