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 has been discussed that suicide is more a factor for the non-custodial parents because
they have lost the substantial relationship with their children, spouse, and their role within the family leaving a tremendous void. The custodial parent is more likely to feel needed after divorce because their relationship with the children continues in a substantial manner.
It is estimated that over 85% of U.S. couples have children (Tamara Halle 2002) 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?
Many typical court-ordered parenting plans appoint one parent as the custodial parent and the other in a minimal role. This places many divorced parents in the position of increased risk for suicide, among other consequences. I don’t think the reader needs to be told just how terrible it is for the children of a parent who has completed suicide. In addition to the horrible trauma, children of a parent who has completed suicide are much more likely to attempt suicide.
While these are worst case scenarios there is much that can be done to lesson the risk. Studies have shown that both parents involvement with the children after divorce yields the most positive effects on the development of the children (Tamara Halle 2002). Ok it seems clear that loving parents removed from their children is bad and loving parents working together for the children is good.
But wait, slam on the brakes. Mom and Dad are going through a divorce so it’s just not possible to continue with both parents involved is it? After all they are going their own separate paths. It is true that the parents can terminate their relationship with each other, but it is impossible to deny the relationship between each parent and the children. That relationship exists and the only choice to make is to decide if it will be a loving, supportive relationship or not.
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.
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 (Kelly 1989). 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 is, 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 non-performance on the 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.
In addition, consider that it has been shown in numerous studies that children who are exposed to improper conflict resolution in their families are more likely to resolve their own conflicts with aggression (Tamara Halle 2002). Not the legacy you hoped to leave for your children?
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. (Emery (1994); Irving; Irving & Benjamin (1992)), and (Kelly and Fund for Research in Dispute Resolution. 1990).
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.
The benefits of such a collaborative process are significant.
• Avoid forced settlements. Settlements forced by the court usually tend to be less ideal for parties that could have otherwise worked together to find a more ideal solution.
• Find creative solutions. Litigation in the courts is not the place to discover creative solutions that provide the best benefits to all involved, including the children. In Mediation flexible parenting schedules and financial arrangements can be agreed to.
• Preserve the disputant’s relationship. Similar to any conflict the relationship between combatants is rarely improved by the battle. Usually both sides leave feeling they can never trust the other side and that any respect that was there is gone. In addition the children are always exposed to negativity that can only do them harm. It is not surprising that disputants who leave mediation have gathered valuable communication and negotiation skills that can actually improve conflictive relationships moving forward, which is good for the children as well as the parents.
• Mediation is private and confidential. The fact that you are seeing a mediator is confidential to any outside parties. The substance of your discussions in Mediation are also confidential and cannot be shared. Therefore, creative solutions can be discussed without obligating either party to any unfavorable terms. One party cannot use any discussions that occurred in Mediation against the other at a later date. Many alternatives will be discussed and some rejected until a joint solution is found that is a win/win for both parties.
• Disputants control the settlement. Both parties control how the different issues will be resolved. Both will agree how the marital assets will be divided, how the parenting plan will be written, etc. This way one side can’t assert any power in the Mediation to force the other side to take a settlement they don’t wish to. In Mediation, both agree, or there is no agreement.
• Both sides save time and money. The mediator works for both of you and the fee is divided so each side ends up paying for far less time. In traditional litigation both sides pay attorneys and because everyone is fighting for himself or herself more billable time is spent going back in forth. In Mediation all become a team working together to solve the mutual problems with mutual solutions that tend to provide greater benefit with far less expense.
• Mediation is usually less emotionally draining. During Mediation it is expected that both sides have full disclosure so neither side should worry about how much the pension plan is really worth, for example. All assets in question are appraised so that both sides share the same level of information about what is being negotiated. Mediation is a forward focusing, solution oriented process. Much time will not be spent discussing who did what and why. The focus will be discussing how to move forward. This helps to keep a lot of the emotion away from the sessions. Also both sides agree to treat the other side with respect by agreeing to the ground rules at the
beginning. Ground rules are simple agreements to not interrupt the other when they are speaking for example, no derogatory names, and of course no hurting each other, the mediator or the mediator’s office. Seriously, if someone can’t abide by the ground rules the mediator will conclude the Mediation.
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.
Written by Tom Davis, Family Synergy Mediation
©2006 Tom Davis
Endnotes:
Emery (1994); Irving, H. H. B., M. An Evaluation of Process and Outcome in a Private Family Mediation Service. Mediation Quarterly, Kelly (1990); Pearson & Thoennes (1989). 10: 35-55.
Irving & Benjamin (1992), P. T.
Kelly, J. B. and Fund for Research in Dispute Resolution. (1990). Mediated and adversarial divorce resolution processes : an analysis of post-divorce outcomes, final report. Corte Madera, Calif., Northern California Mediation Center.
Kelly, J. e. (1989). Empirical Research in Divorce and Family Mediation. Mediation Quarterly. 24.
Tamara Halle, P. D., Project Director (2002) “Charting Parenthood:
A Statistical Portrait of Fathers and Mothers in America.” Child Trends Volume, 220 DOI: