A New Mindset!

"We are living in a society in which victims are compensated with money." - Rod Wells

Rod is one of my colleagues on the Board of Directors of the Family and Divorce Mediation Council of Greater New York, and he is also a Financial neutral in mediation and collaborative cases. He stated this at a meeting of the NYS Council on Divorce Mediation a few weeks ago.

If we come to a separation with that mentality, we must show how badly we've been wronged, for the worse off we are emotionally, the more we stand to gain financially. It focuses on punishing bad behavior for what has happened in the past.

Is that the collaborative process? No! In the collaborative or mediation process, we are looking to see how we can use the existing resources to get the best outcomes for every member of the family. Or to use the existing resources to increase what is available. (In other words, instead of dividing the pie up, make a bigger pie!) This keeps us focused more in the present, asking the question - what is the best outcome given where we are now?

It's a whole different mindset!

Either/Or or Both/And?

My friends and I used to talk about a concept of "both/and" as opposed to "either/or."  What we meant was that, when making group decisions, we could look for solutions that were good for the group as a whole - and therefore each person in the group (a win-win approach), rather than one person winning at the expense of another losing.  This really describes the basis of mediation and collaborative process, as opposed to litigation.   It's not about individual rights - it is about taking care of the needs of everyone in the family system.

In other worlds, you're not splitting up the pie in this way or that, you're baking a bigger pie!

Which Way Are You Facing?

One of the hardest and most important tasks in working with a couple is to get them to turn around.  They almost always come in, facing each other, arguing.   They see the other person in front of them, and often they are furious.  All they can see is what that person has done to them, all they can feel is the loss and rage inside that that person has caused.   

And then there are the logistics to work out.

And part of my job, like a ship captain, is to turn them around to face another direction.  Suddenly, the three of us (in mediation), or the four of us (in a collaborative process), are looking at something together.  We've got a problem to solve. How are we going to solve this problem?  Instead of facing each other, with blame and despair, we are working together as a team.

Because now the focus is on something logistical.  Something solvable.  And the couple is no longer each other's enemy.  Often this is the aha! moment - the moment when the insolvable seems suddenly manageable.

Keeping It Light ...

I just finished reading Elizabeth Gilbert's Eat, Pray, Love.  She describes divorce to "having a really bad car accident every single day for about two years."  Wow - what a concept! I don't think they were mediating ...

What Can You Agree On?

I'm excited because I just finished mediating a case that really worked.  

To be honest, the first time I met the couple, I really had my doubts.  If he said the sky is blue, she'd say, "you're lying - you know it's green!!"  I mean they couldn't agree about the most basic of facts.  But they both clearly loved their daughter, and they were both responsible parents.  The problem was that the mother wanted to move to another city, several hours away.  And the father had had the child just about half time.  And going to court to fight over custody just made everything between them worse.   At the end of the first session, I said, "Your daughter will be fine if she lives with you, or if she lives with you.  But she will not be fine if you keep fighting like this."

We met over several sessions - each a few weeks apart.  We worked on small agreements, to build up trust - when the child could call her other parent.   How they would notify each other.  We explored what they both needed.  What they both considered  to be fair.  

They were making a lot of progress (and even shook hands at the end of the 2nd session).  But they were already in court and we had that pressure looming over us.  Would they be able to come to a full agreement?  I realized that they probably could not.  The father didn't want her to move, the mother needed to go.    If they gave up on mediation, the judge would decide everything - not just where the child will live, but how much time the other parent gets to spend with her.  

I asked each parent to do some homework:  Assume the child is living with you.  How much time do they get to spend with the other parent.  They came tonight's session prepared.  They agreed to let the judge decide where the child will live.  And they agreed that they wanted to decide on the other parent's access to the child.  And they agreed that it should be the same plan, no matter which parent is "non-custodial."  So then it was a question of working out the details.

We worked for 3 hours, around a table.  We wrote things out.  We talked about the child's needs.  About the necessity of each of them keeping a very close relationship with their daughter. About how important it was for her to keep close relationships with her step-sisters and brothers on one side, and her cousins and grandparents on the other.  About the importance of school.  And consistency.  And predictability.  They agreed on so many things.   Then it was a question of working out the details - holidays, long weekends, summer, school vacations - that part, after the rest, was pretty easy.  

Once they let go of having to prove their case - why their side was better - they were able to really work together.  Even if they couldn't decide the whole thing, they were able to shape what they could of the agreement.  And because they worked out the visiting schedule without knowing who the child will live with, they both felt that it was fair.  

They were even joking around with each other.    And their daughter?  She'll be just fine.

Splitting up

"A divorce is like an amputation: you survive it, but there's less of you.” - Margaret Atwood

What started as a partnership in marriage (or coming together) has become a (perhaps unwitting) partnership in divorce (or splitting apart.) It is a long and painful process, particularly when there are kids or real estate involved. Which is the best process for you?

The Starbucks Approach. You and your partner can sit down over a cup of coffee and work out the details together. This works well if you have good communication, if neither of you have much property, and if there are no kids involved. It is obviously the cheapest.

Mediation. Here, you and your partner sit down for a series of meetings with a trained divorce mediator (usually an attorney or mental health professional). The mediator is a neutral person who structures the conversations to help you address the issues in conflict, and coming up with an plan to which both of you agree. The mediator then writes up the terms of that agreement. I suggest that each partner show it to an independent review attorney. The mediator or one of the attorneys can then file an uncontested divorce for you, incorporating that agreement. This works best for couples who are someone evenly matched in terms of power, who trust each other not to be hiding assets, who want a good working relationship after the divorce, and who want the terms of their divorce to be private. Mediation allows you to decide what is best for your family, and to shape a plan that is tailored to your family's needs. It is less expensive than litigation.

Collaborative Process. The partners each have their own attorneys who “hold the meditative consciousness.” In a series of 2-way and 4-way meetings, the attorneys guide the partners through the collaborative process, sort of a modified mediation. Collaborative attorneys are specially trained in mediation as well as divorce. The key here is that if the process falls through, each partner must get a different attorney to represent them in court. In other words, the parties agree from the beginning that they will not go to court or threaten to go to court in this process. The collaborative process often involves neutral child specialists and financial planners who can help the partners come up with plans for allocating financial resources and child-care responsibilities.

This is best for partners who need a little more support than those in mediation, but still want to retain control over the process, and stay non-adversarial. This is best for partners who want to keep a good working relationship in the future, and basically still trust the other to be honest about finances, and who want to keep the details private. It is more expensive than mediation, but still much less than litigation.

Contested divorce. This is the most “traditional” form of divorce, where each side has an attorney, whose job is to zealously advocate for their client. A contested divorce may be necessary if you think that your partner is being dishonest about his or her assets, and about how much money he or she earns. It can also be useful if there is an imbalance of power, or if there is any threat of physical violence. While nearly all contested divorces are settled out of court, there is often a lot of time, money and goodwill exhausted before that actually happens. If the case actually goes to trial, the judge will decide how much time you spend with your children, how to divide up your assets, and how much one will pay the other for spousal or child support. It may be necessary when there is an imbalance or power (or domestic abuse), where there are serious mental illness or addiction issues, or where one partner may be hiding assets. It can costs tens of thousands of dollars, and is often the most stressful for the partners and for the children involved. It can also drag on for months or even years.

The Motivation to Mediate (or Collaborate)

Are you sure that you want to mediate or engage in the collaborative process? Is this a process that makes sense for you and your partner? If so, why?

People come to mediation for many different reasons. Some want to keep things private, and avoid as much of a public record of their divorce as possible.

Others want a chance to tell their whole story, which they know they would not get to do in court or in a process of legal negotiations. To them, it is most important to be heard.

To some, keeping control of the decision-making is important. They don’t want outsiders (judges or lawyers) imposing judgments or determinations on them. They feel that they know themselves, their children and their situation best, and are therefore in the best place to make decisions.

Some people see the adversary system as just making things worse between the parties. They want to protect themselves and their children from the inherent tensions in separating, and want to minimize the hostility between them.

Others simply want to save money, and see both mediation and the collaborative process as an efficient way to keep costs down. Or they think they could get a better deal if they avoided going to court.

What makes you want to give this a try? What do you think appeals to your partner/ex? Whatever the reason, it is best to be up front about it – with yourself, with the other person, with the mediator. That gives you something to judge the process against as you go along. Is this helping you achieve that goal?