Divorce through mediation

Published in New1
Legal proceedings between separating spouses are complex and may last several years, causing serious emotional and financial harm to the couple and their children. Nevertheless, many choose to go to court. One reason is that such proceedings allow people to see things in black and white, to say “I am good and the other person is bad”, because in court there are winners and losers.
The dissolution of a marriage is accompanied by a profound sense of failure: failure at one of a person’s developmental tasks. Many also confuse the breakdown of a marriage with the breakdown of a family, and feel tremendous guilt towards their children and extended family.
A court claim offers a way to relinquish responsibility and say “it is all the other side’s fault”—a comforting statement. As a family lawyer who has accompanied many divorcing people through legal proceedings, I have encountered many emotions and impulses at work here: the need for control, the desire for revenge, and the expression of insult or hurt. All these find expression in the amount of maintenance claimed, the power struggle over custody or children’s contact arrangements, and other issues.
The major problem is the long-term harm caused by legal proceedings. It is important to remember that when a dispute between spouses becomes a legal battle, there are mostly losers. The insults, hurts, disparagement and disrespect generated and exposed in proceedings become etched in memory. They make continued co-parenting harder and affect children, who sense the tension between their parents. Ultimately, entrusting a judge with responsibility for determining divorce arrangements can be harmful, as the decision takes account of established legal precedents rather than the family’s needs.
Agreement instead of “victory”
Divorce mediation has no “winners and losers”, but agreement. Mediation seeks a solution suited to the needs of the couple and their children. The search for appropriate arrangements, the desire to make a fresh start and parental responsibility replace feelings of revenge and insult and preoccupation with who caused the marriage to fail.
Anger and hurt do not disappear. The decision to divorce is an excellent production line for nurturing such feelings and impulses. Nevertheless, choosing mediation means that the parties choose to create a divorce agreement for their own benefit and their children’s. It offers many advantages that will serve them throughout their years of divorce—in other words, for the rest of their lives.
A mediator can provide an environment that accommodates the pain, frustration, fears, anger and full range of emotions accompanying separation, while supporting and helping the parties choose and shape practical solutions for dissolving the marriage. The alternative, as noted, is a judge’s ruling, which is not necessarily based on the family’s needs.
Legal proceedings can take a long time, usually at least two years. In mediation, meetings can generally be arranged at short intervals. Within a few months, it is possible to complete the separation process, including a religious divorce where required. The great advantage of a short divorce process is that parents and children quickly enter a new, stable routine without tensions and power struggles. We must not forget that a prolonged divorce process sustains difficult feelings and emotions, making it harder for either spouse to let go and rebuild their life.
Without third parties
Court proceedings bring third parties into the relationship between spouses: lawyers and a judge. This experience may entrench the feeling that “there is nobody to talk to” and that direct, effective communication between the spouses is impossible. In mediation, the spouses sit with the mediator and have an opportunity for direct dialogue. They hear and express their concerns and needs, and discuss matters such as cooperation in raising and educating their children. This can be an opportunity to establish foundations for effective communication after the separation process ends.
Mediation is, by its nature, a place to seek solutions beyond laws and what is “customary”. There are no plaintiffs and defendants here. The decision-makers are the spouses, sitting together with a mediator. This setting offers an opportunity for brainstorming and thinking outside the box. A solution need not be entirely standard to be particularly well suited to the couple or their children.
Separation places spouses in a state of uncertainty. Their daily routines are expected to change according to decisions about custody or contact arrangements, while their financial circumstances change simply because they move into two homes. Each spouse wants to rebuild a complete life. Mediation provides an opportunity to examine what each spouse needs and what the children need, so that life after separation can settle onto a positive course and family members can continue living, developing and progressing towards the goals they set themselves.
Not talking about feelings does not mean that they do not exist or influence those who experience them. Mediation can make room for emotions, and the mediator can examine how they affect the spouses. The mediator can help the parties express their feelings, accommodate sadness, anger, hurt and fear, and then work towards practical solutions.
Saving unnecessary expenses
Children do not want to see their parents fighting. Legal proceedings represent a fight. Mediation makes it possible to reduce the intensity of disagreements and manage them in a way that limits children’s exposure. This reduces the risk that they will feel obliged to take sides during the separation. Moreover, when parents reach solutions themselves, they are more at peace with them and improve their emotional well-being. Calm parents can be available and attentive to their children’s needs.
Legal battles involve very high costs that would be better invested in productive goals, such as building the children’s future or even the parents’ own future. Instead, they are spent on an unnecessary legal struggle. In most cases, mediation costs incomparably less than litigation with lawyers. At a time when the family moves into two homes and everyday expenses increase, there is an opportunity to direct financial resources towards establishing those two new homes instead of conducting legal battles.
When separation proceeds through litigation, there is a tendency for it to become public knowledge, in the sense that many people know about it. Simply needing to miss work to attend court hearings can force spouses to disclose a situation they would have preferred to keep private. Mediation allows separation to be managed more privately and with less public exposure. Dissolving a marriage involves feelings of loss, missed opportunity and failure, and there is considerable benefit in conducting a process associated with such feelings away from the noisy, emotional crowd and its various suggestions.