Whole Living Guide > Divorce Mediation

The Happy (Ex) Couple: Is Healthy Divorce Possible?
By Sharon Nichols . Illustration by Virginia Lavado

Sometime back in the, oh, mid-1800s or so, I went through a divorce. Luckily, the guy I was married to was not a total jerk, and he didn’t try to take me to the cleaners when it ended. We signed the papers and parted without too much strife, and that was our sweet little fairytale ending. Unfortunately, many marriages do not end with happy tales. Some are pretty vile, and a few end up more like the final scenes of The Shining. Heavens ta Betsy.

Why can’t we all just get along? Swinging an ax at the once beloved can be avoided. There’s this thing called mediation, and it’s high time for this little slice of common sense to be brought to the attention of divorcing duos everywhere. I recently spoke to a handful of local folks who specialize in the field: Myra Schwartz and Josh Koplovitz of Pathways Mediation Center, Dan Schneider of Woodstock Mediation, and Rich Rubin of Hudson Valley Mediation Services and Resolutions. After listening to these individuals, I am convinced that mediation is the way, the truth, and the life for most of the dearly departing.

First, what is mediation? It’s a system of negotiation with a third party who is neutral (not a lawyer, but a mediator). If a husband and wife could find a way to negotiate directly on their own, that would be ideal, but in a conflict situation such as a marriage break-up, it’s not always conceivable. So, that third party acts as a translator to help the couple find common ground.

Here’s how mediation operates: the mediator works with the couple to help them peacefully arrive at an agreement. They sign it, usually after taking it to their own independent attorneys for review, because it’s important for each person to understand what they’re signing. It then serves as a separation agreement that can be converted into a divorce.

There are a few logical reasons to choose mediation over the traditional lawyer vs. lawyer approach. Consider the following:

MEDIATION IS CHEAPER AND FASTER. Most divorces in New York State are called adversarial divorces—the husband has his attorney and the wife has hers. There’s not only arguing and fighting between the couple, but also between the attorneys, and all that time and fighting gets costly because each attorney must be paid. There are many agreements that need to be reached—dividing assets, parenting arrangements if there are kids involved—all of which require many different contracts that take a lot of discussion and time. Mediation is much cheaper because there’s usually only one person involved between the couple, and a mediator is not as expensive as an attorney. The couple can make solid agreements with the mediator, use their separate attorneys to review the agreements (provided they are “mediator friendly”), then draw up and file the required legal documents.

IT MAKES FOR A BETTER RELATIONSHIP BETWEEN THE COUPLE.
Let’s face it, divorce is not always the end of things, especially if there are offspring. In the case of kids, the parents will probably have contact with each other for the rest of their days, so why have things be foul? In mediation, couples work together, join forces, and cooperate to come up with the best financial and living arrangements for everyone involved. By involving lawyers in the traditional route, divorce can escalate into a huge drama with accusations, cross accusations, arguing, blame, bitterness, and open wounds, leaving little room for dealing with the biggest truth of all—a loving relationship is ending and a family needs to transform. Mediation can help make the death and rebirth less intense and more friendly.

IF CHILDREN ARE INVOLVED, THEY BENEFIT, TOO. If Mom and Dad aren’t bludgeoning each other, the children don’t feel a tug of war between the parents and themselves. In mediation, kids see their parents working together in a non-threatening, secure relationship atmosphere where they don’t have to take sides and choose one parent over the other. Too often, children are put in the middle in an adversarial divorce, which takes its toll on the child’s emotional life and future.

IT TEACHES COMMUNICATION SKILLS. And surprise!—not everyone has them. Perhaps if communication skills were learned much earlier in life, most divorces wouldn’t be happening in the first place. But in working together, even in the final hours, the couple can learn how to finally negotiate and resolve disputes in a more friendly manner. This is especially important for the children, because they can see that if there’s an issue not working out in a desirable way, healthy communication, not ugly fighting, is the best way to solve problems.

Learning good communication also helps set the stage for direct negotiation later on. Most mediators will admit that their role is to eventually make their job obsolete. If the parties can learn to negotiate and talk directly now, they can possibly change agreements as people’s lives progress down the line (e.g., as kids get older, their needs and desires will change).

MEDIATION IS MORE CREATIVE. Okay, so who knows what you really want—you or a couple of lawyers? In mediation, the couple can create an agreement that really works for them, rather than what works for the judges or attorneys. For example, say a woman wants the husband to pay for her education for the next few years so she can establish herself, rather than have him provide income maintenance. A settlement that is reached by the couple, as opposed a court-imposed resolution, will more closely reflect the needs, desires, and issues of the husband and wife. When lawyers get involved, they often begin imposing their own ideas as to what’s appropriate for the clients. It’s not their agreement. Why should it be tailor-made to their wishes?

STATISTICALLY IT’S MORE SUCCESSFUL. Mediated agreements have approximately an 80 percent chance of being followed through in years to come, whereas those that come through court agreements have a much lower success rate. We all know cases where child support has fallen through the cracks because of a self-centered ex who couldn’t care less about what was promised. Through mediation, the couple buys into the idea of working things out, instead of just listening to a judge. No one likes to have rules imposed upon them. We all enjoy our own choices, and mediation supplies that.

IT’S LESS COSTLY TO SOCIETY. Sadly, some attorneys pride themselves on being “bombers” who want to win at all costs and make situations as nasty as possible. The longer and more drawn out the nasty situation, the richer the lawyer becomes. The couple should benefit financially, not the attorney.

Those in the legal field today are starting to understand these benefits of mediation and are beginning to make a case for it, in addition to pushing for continued legal education courses. Many attorneys now practice holistic law; it’s less about winning and more about solving the problem and assisting everyone the best they can. In a new technique, some attorneys will even sign an agreement in advance that they won’t take a case if it’s not resolved through mediation, and they’ll only counsel for mediation purposes. Unfortunately, some attorneys would like to see mediation fail so they can rake in legal fees. So it may be difficult to know which lawyers are which. This is one potential pitfall in mediation, so caution is advised.

There are a few other potential snags:

SOME COUPLES REFUSE TO TALK. They don’t want to be in the same solar system with one another, not to mention the same room, so it would be nearly impossible for non-communicators to sort things out with a mediator. Time may allow wounds to heal enough for mediation, but sometimes not.

SOME COUPLES WANT TO GO FOR THE JUGULAR. Not everyone wants to play nice, and many people eat drama like candy. You can’t force people to want to get along, and it certainly takes two to tango.

THERE ISN’T ALWAYS A LEVEL PLAYING FIELD. In many divorces there is unequal bargaining power. In a situation where there are power issues, the more powerful party would often rather go to court and drag things out, making the less powerful one suffer (e.g., being unable to afford legal fees or needing child support). Mediation works best where each party has both something to lose and something to gain from the other, and there is benevolence on both sides.

HOW DO YOU KNOW WHO IS A SKILLED MEDIATOR AND WHO ISN’T? Certification is of the utmost importance here, since a mediator, like a doctor, could do more harm than good. They must have experience and know what they’re doing, and New York State does not regulate mediators yet. Anyone can pose as a mediator with courses and training, but there are no certification requirements, disciplinary procedures, guiding rules, or standards to date.

There are many quality mediators out there, if you simply do your homework and seek them out. Schwartz, a retired guidance counselor, and Koplovitz, a matrimonial attorney, both have 30 years under their belts and have worked as a team for two years; they feel the man/woman combo works well for couples. Schneider, an attorney, is on the committee of standards and ethics for the New York State Dispute Resolution Association, and Rubin has been a divorce mediator for over a decade.

A few more good places to start on the Web would be at
New York State Council on Divorce Mediation (www.nyscdm.org) or New York State Dispute Resolution Association (www. nysdra.org).

Mediation appears to be the newest and healthiest way to part if both individuals are open to playing fair. But since mediation is an unfamiliar option to most people, it should be carefully examined. Some counties in New York are trying mandatory attempted mediation in matrimonial matters, including a pilot project which is being tested in Orange County. Mandatory mediation is happening in New Jersey as well. At any rate, mediation is best when it’s considered at the onset of breakup—before the ugliness accelerates, nasty words begin to gouge deep wounds, and a once beautiful relationship is forever destroyed.