Divorce Resolution Alternatives and Mediation.
Divorce is difficult and troubling to the families involved but much of the damage that is possible can be prevented, in part, by properly handling the conflict in the most effective manner. Divorce is a stressful and very damaging process that leaves invisible wounds to all involved that can’t easily detected.
How damaging is divorce? Well the extent of the effects can’t be fully explored in this article; however, we can suggest just how serious the matter can be. The effects of divorce are as serious as death on one extreme. Sound overly dramatic? Well consider this. People going through divorce are three times more likely to commit suicide. This makes divorce the leading cause of suicide in the U.S. above all other financial, psychological and physical matters. This is indicated in a recent study conducted by the National Institute for Healthcare Research in Rockville, MD.
It is estimated that over 85% of U.S. couples have children [1] and with the divorce rates estimated at 40% to 60% it is not a stretch to see that tens of millions of Americans are affected by divorce. There are a lot of divorce cases that involve children going through the court system so how does the court handle this volume?
The Courtroom Solution:
Many parents in divorce already can’t agree on many issues and it may seem impossible to come to agreement on such complicated matters such as how to parent after divorce. Best let the Courts figure it out. After all they are supposed to work out an agreement that works for everyone aren’t they? No, unfortunately they are not and they do not. Courts typically issue non-imaginative parenting and financial plans that are quick to award and simple to decide. The Courts are not being negatively criticized here for not being able to spend the time necessary to explore creative solutions for divorcing parents. This is not their role and Courtroom is not conducive to effectively explore such matters.
The Attorney Solution:
Best let the lawyers figure it out then. One alternative is to hire lawyers to represent your rights, after all that is why they are there, right? Yes exactly right, but unfortunately, in a family, your rights aren’t the only ones that need to be represented. Now the other parent needs to even the power field by hiring an attorney to represent their rights. Sometimes someone is appointed to represent the rights of the children too. Well, now that everyone’s rights are represented only a fair resolution could result, you might say. In reality the majority of litigation fails to deliver satisfying results according to Joan Kelly, Principle Investigator for the Fund for Research in Dispute Resolution [2]. Think of it this way instead. Instead of the mutual rights and needs being worked on together there are a possible 6 battles engaged between the different constituencies.
Battles such as these inarguably produce definitive decisions on different issues, wins and losses over each issue in the divorce. The net tally of each win and loss, at best, hopes to result in a fair settlement, or compromise. The reality is that there are losses to produce the wins. Someone loses to provide a win for the other. Those losses create issues that plague the relationship going forward and compromise the satisfaction of the resulting agreement for all parties. These lingering issues can mean future appearances in court to try and correct perceived injustices from the original settlement, or no follow through on the resulting agreement. This drags out the conflict draining critical financial and emotional resources from all involved and in fact it becomes clear that no one actually won anything.
The Mediation Solution:
Let’s explore another alternative where the collective interests of both parents and children are effectively handled. Divorce by mediation is effective because the process is voluntary and the disputants remain in control of the final outcome. No agreement is final until both sides agree and no party benefits at the loss of the other. This approach produces more satisfying agreements that endure longer and are less likely to be contested in Court. [3, 4], and [5].
Mediation is the process of meeting with a neutral third party who will guide the negotiations to reach a mutually satisfying agreement. The mediator will start by understanding the interests of each party and correctly framing the issues. For example one parent’s position for wanting the maximum child support and the other parent’s position for wanting the to pay the minimum child support is re-framed as both sides wanting the child support to be a fair amount.
This process of “mutualizing” the parties issues and interests continues until each side’s personal issues has been re-framed to be included in a list that represents interests and issues from both sides. With the issues properly framed the parties and the mediator now become a problem solving team working to resolve the issues with creative solutions that satisfy both sides.
Sounds wonderful but it must be acknowledged that mediation is not the answer for every dispute. Mediation is a very good alternative when the parties can work together and both seek a win/win agreement. If either party wishes to dominate the negotiation and use forceful and manipulative tactics to triumph over the other party, or if one of the parties is simply not interested in negotiating with the other side mediation is probably not going to work well for them. There are other situations where domestic abuse or mental illness make mediation a less effective alternative. Clearly if the parties can work together, it is in the best interests of all involved to give mediation a try.
Because mediation is strictly voluntary and does not restrict the legal rights of either side there is no risk of trying to work it out this way. The risk of not finding an effective solution is potentially a legacy of pain and damage lasting generations.
Stop by www.myfamilymediation.com for a free Mediation Information Kit that will answer your questions and give you valuable information about how Mediation can help solve conflicts.
Written by Tom Davis, Family Synergy Mediation
©2006 Tom Davis
Endnotes:
1. Tamara Halle, P.D., Project Director (2002) Charting Parenthood:
A Statistical Portrait of Fathers and Mothers in America. Child Trends Volume, 220
2. Kelly, J.e., Empirical Research in Divorce and Family Mediation., in Mediation Quarterly. 1989.
3. Irving & Benjamin (1992), P.T.
4. Emery (1994); Irving, H.H.B., M., An Evaluation of Process and Outcome in a Private Family Mediation Service., in Mediation Quarterly, Kelly (1990); Pearson & Thoennes (1989). p. 35-55.
5. Kelly, J.B. and Fund for Research in Dispute Resolution., Mediated and adversarial divorce resolution processes : an analysis of post-divorce outcomes, final report. 1990, Corte Madera, Calif.: Northern California Mediation Center. 32 p.