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In Favor of Mediation |
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"Mediation:
It Can Help Families"
– Excerpted from Between Love and Hate, by Lois Gold, p. 3-4Divorce does not have to be like this. It can be different. In fact, for the sake of the children, it must be different. Why? Because the children who do not fare well in divorce are the ones whose parents are hostile and fighting. All current research on children and divorce unequivocally finds this to be the case. That is one reason why more and more parents are choosing mediation, instead of attorney-to-attorney negotiation or litigation, when faced with the crisis of separation or divorce. Mediation is different from the conventional approach to divorce in many significant ways. First and foremost, mediation sees parents as joint decision makers – not opponents. It also sees the family as the client and, in so doing, helps the parents focus on what is best for their children, on what is best for their family. And herein lies another important difference from the conventional approach to divorce. Mediation recognizes the fact that the relationship between the parents doesn’t end with divorce, and in fact, needs to be supported and respected. The bottom-line is this: if parents compete against each other and fight to win the kids, the house, the pension, the bank accounts, and so forth, in their attorneys’ office or in court itself, is it really possible to end the fight once the divorce is final and work together for the sake of the children? Current research on children and divorce also documents that the children who do well after the crisis of divorce are the ones who have two actively involved parents in their lives. This does not necessarily mean 50/50 custody, but it does mean that children need enough time with each parent so that they can have the opportunity to form a close, real relationship with both. Mediators help parents develop such a parenting plan. So how does mediation work? In mediation, two parties meet voluntarily and face-to-face, in the presence of a neutral, trained mediator, to discuss the issues that must be resolved. (If face-to-face meetings are unproductive, the mediator may meet with the parties separately.) The meetings are usually in an informal and private setting. In these meetings, the mediator first of all helps the parties identify issues. In a divorce case, those issues would include custody, visitation, division of property, and support. In a case where parents are in conflict after the divorce is final, the issues might be: changing the times that the children are with each parent, deciding which school the children should go to, and so forth. The mediator also helps the parties identify their needs, some of which are shared, some of which are competing. The mediator provides information to the couple as needed, works with them to develop options, and assists them in their negotiations. The mediator does not make decisions for the couple. Rather, it is the couple who is in charge of the decisions. The end result is a series of agreements which speak to both of their needs. Contrary to what one might think, lawyers are very much a part of the mediation process and each client is strongly encouraged to retain one. The lawyers serve as consultants to their client, since issues will come up for which the couple will need legal information. Further, the lawyers will review the agreements, informing their client if he or she is agreeing to something that is not in his or her best interest. Lastly, it is the lawyers who take the agreements through the court process. Mediation is short-term, generally lasting 2-3 months with an average of 4-6 sessions (1½ hours long). Fees are billed at an hourly rate, with different mediators charging different rates. Mediated divorces usually cost less than conventional divorces even with two lawyer-consultants. The reason for this seems to be that communication in mediation is direct, i.e., a couple talks to each other rather than through their attorneys, and there is less need for lawyers to engage in expensive legal procedures. In closing, mediation is a process which is available all over the county, state and country. It is not an answer for every situation or for every couple. But it is also not just for the “perfect” couple (i.e., where both want the divorce, communicate well and have no hard feelings). Mediation is appropriate for the vast majority of couples. |
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Originally published in Journal for Michigan Parents & Educators, February 1995, by M. Brady Mikusko, MA, MSW, Advanced Practitioner – Association for Conflict Resolution (also provided early financial backing in support of Divorce Peers). Contact information: M. Brady Mikusko, 415 North Main Street, Ann Arbor, MI 48104; telephone 734.747.8240; <click here to eMail>. |
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Agreements |
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"The Messy (Legal) Steps of Divorce" |
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