Mediation is a way of resolving conflicts aimed at helping partners who decided to get divorced go through this process with as little complications as possible. The role of a divorce mediator is not an easy one, particularly when the decision to address his or her services is not voluntary but mandatory. The process of divorce mediation requires thorough preparation and taking into consideration a number of factors. Out of all the available mediation styles, the transformative approach seems to be the most appropriate when dealing with the process of family separation.
Mediation is one of three approaches to terminating a marriage, along with litigation and collaboration (Bartelmie, 2011). Litigation presupposes an attorney-client relationship and involves a husband versus wife or a wife versus husband court application during which much of personal information about the partners is made public due to a desire of the two people to gain an advantage over each other. The process of litigation is lengthy and complicated. The major role during the process belongs to the attorneys. It is hardly possible for future ex-partners to sustain good relationships when they choose this type of conflict resolution (Bartelmie, 2011).
Collaboration is a more civilized approach. Although it also involves attorneys, in this case, they work as two teams aiming at finding the most beneficial solutions for both parties. These teams may be expanded and may include coaches, child specialists, financial consultants, and appraisers, who all work together to simplify the divorce process as much as possible (Bartelmie, 2011). Compared to litigation and collaboration, mediation is the best option for couples who wish to avoid the involvement of the court and prefer to choose a third, independent party to manage the process of separation.
Mediation is the most democratic approach to a divorce process because, at its core, it has integrity rather than hostility (Schwartzberg, 2009). During the process of mediation, the emphasis is put on partners’ willingness to negotiate and cooperate.
Unlike litigation and collaboration approaches where a husband and a wife are in opposing teams, mediation presupposes that a family is a “client” of the process (Bartelmie, 2011, p. 17). Parents and children are considered as a whole, and the ultimate aim of the mediator’s work is to reach the best outcomes for each of the parties. Mediation concentrates on sustaining friendly relationships between spouses in order to arrange the most favorable results for children. The mediator emphasizes that although two adults have decided to stop being a husband and a wife, they should not forget about their roles as parents. In this approach, there is no space for hostility or hatred, and all attention is paid to finding the most convenient solutions for children and their parents.
Mediation has a number of advantages over other forms of marriage termination. It is less expensive and takes less time than collaboration and litigation. Another significant benefit of this approach is that no confidential information is shared, and no court publicity is involved (Bartelmie, 2011). All agreements are reached mutually, which means that the parties will more likely adhere to them. Parents have an opportunity to arrange the best childrearing options as well as manage their own time in a convenient way. In case if parties do not have children, mediation helps them to settle the affairs in a friendly and reasonable way. Stoner (2010) outlines the following advantages of mediation:
- balancing the situation with the help of a compromise;
- arranging the voluntary exchange of all the required information;
- settling for an agreement on legal operations that reduce the expenses and rationalize the process;
- arranging the conditions that are suitable for everyone;
- making arrangements regarding the post-divorce resolutions.
Typically, mediation is comprised of five stages:
- “introductory.”
- “informal gathering.”
- “framing.”
- “negotiating”
- “concluding” (Stoner, 2004, p. 2/3).
Usually, these steps happen one after another. However, there are cases when a mediator needs to return to some of the steps in order to make the situation clearer before making final conclusions and arrangements. There are also cases when it is not possible to distinguish any phases at all (Stoner, 2004). In any situation, mediators should try to notice the changes in the process since each of them has some peculiarities that may be helpful in reaching an agreement. The majority of divorce mediations require many sessions to carry out all the five phases due to a large number of issues to resolve, such as child custody, alimony, property division, and others.
Families going through a divorce are in need of support and help, which is the responsibility of a mediator. It is his or her job to arrange the first session in such a way that partners would want to continue the meetings and deal with their problems in the most democratic and friendly way. Although mediation is known for its detachment from legislation, specialists may consider it necessary to invite legal professionals in the process of mediation (Emery, 2012).
It is crucial for mediators to have a coherent plan of procedures, and it is possible to involve the legal community in creating it if necessary. Judicial support is a significant constituent of successful mediation. Judges may advise partners to start the mediation process or even assist in initiating this process at the earliest stages of divorce. There are several reasons why judges at family courts should promote mediation.
The first argument is that judges realize that children suffer in the course of a family disagreement, and it is necessary to eliminate adverse outcomes for them. The second reason is that judges may notice that apart from custody issues, a family may have other serious problems requiring psychological rather than legal help (Emery, 2012). The third thing is that families may have many issues that should be treated separately in the court but may be dealt with together during mediation. The fourth reason is that in many modern families, parents are not married, which makes the legal process much more complicated than mediation. The fifth issue is associated with a growing number of such cases. Judges tend to approve of mediation as a successful approach because it helps them to reduce the number of cases they have to resolve (Emery, 2012).
Therefore, although mediation does not necessarily presuppose legal intervention, judicial support may be rather useful in this process. Since judges have different preferences concerning divorce matters, it is sometimes even necessary to consult them prior to initiating mediation sessions with families (Emery, 2012). With the help of such an approach, mediators are more likely to develop productive policies that will be suitable for each of the parties.
In the process of divorce mediation, two aspects are extremely crucial: what to do about children and how to manage financial issues. There are two issues related to parents’ decisions regarding children: how to make decisions on bringing up (legal custody) and how to share the time to spend with kids (physical custody) (Emery, 2012). When negotiating legal custody, parents have to think of three things: sharing the principal decisions concerning children, appreciating the other parent’s decisions in his or her house, and creating a method of discussing crucial childrearing questions while simultaneously trying to regulate parenting across two homes (Emery, 2012).
When choosing between sole and joint legal custody, it is necessary to bear in mind that there are not so many issues that parents may decide together. Basically, there are three crucial aspects to consider: medical care, religion, and schooling. Thus, it is a common practice that in joint custody, parents decide together what school or church their children will attend. However, it does not mean that in case of an emergency, one parent cannot take the child to a hospital without asking for another parent’s permission. And vice versa, if a parent has sole custody, it does not mean that the other parent cannot participate in such decisions if he or she wants to and if it is not forbidden by the judge (Emery, 2012).
What concerns joint physical custody it is more difficult to arrange than legal custody. The key law requirement is that custody decisions should be made based on children’s “best interests” (Emery, 2012, p. 109). The problem is that there are few criteria defining such interests. They are:
- the preferences of parents concerning custody;
- children’s wishes related to their custodian;
- the communication between children, their parents, siblings, and other people on whom children’s best interests may depend;
- children’s accommodation to their community and home;
- the physical and mental wellbeing of all persons concerned (Emery, 2012).
The definition of children’s best interests is vague, which leads to many arguments and misunderstandings. Emery (2012) defines such interests as the arrangement of the least psychological discomfort for children. However, Emery (2012) also notes that since no attention is paid to parents’ interests, it is frequently a case that parents’ preferences impact the joint custody arrangements. The scholar considers such a state of things quite apparent based on the fact that all of the affected individuals deserve to have their interests recognized. Because joint custody has many unsettled issues, Emery (2012) discussed the options that can be used as an alternative to it:
- parents should analyze many possible variants and come up with a solution that fits best of all;
- instead of assuming what ideas might and might not work, the parent may try several different plans within several months and choose the one that worked best for each person concerned;
- parenting plans should be altered in accordance with children’s age peculiarities; one plan cannot be suitable for several years.
Not all mediators discuss financial issues with their clients paying more attention to children’s interests. However, this problem is an acute one, particularly because children’s interests depend on money greatly. Thus, Emery (2012) emphasizes the significance of regulating financial issues in the process of mediation. Research indicates that after a divorce, the family’s income needs to grow by nearly 30% in order to sustain the living standard that the family used to have while being married (Emery, 2012). The greatest financial burden falls on mothers living with children. The explanation of such a fact is that women usually have lower-incomes, and they have worse job opportunities due to losing some work experience while raising children.
There are three financial decisions to make in divorce mediation: child support, alimony, and division of property (Emery, 2012). Property division is sharing the things obtained during marital life. Alimony is a kind of payment that is made from one partner to another with the aim of sustaining the living standard that a person had while staying in the marriage. Many attorneys consider alimony as something outdated, which is probably why the rules of establishing alimony are obscure Emery, 2012).
Child support is a crucial issue since it is the money necessary for raising children. In the US, schedules are used to estimate child support. The schedules vary in different states, but as a rule, some percentage of each spouse’s income is determined for this payment (Emery, 2012). Financial aspects of divorce are rather significant since, on them, the wellbeing of each of the partners and children depends.
In divorce mediation, the most suitable solution seems to be a transformative approach. Transformative negotiation was introduced by Bush and Folger in 1994 (Irving & Benjamin, 2002). This model is based on two main concepts: recognition and empowerment. Empowerment is related to increased self-efficacy and enhanced confidence and self-awareness (Irving & Benjamin, 2002). The concept of empowerment presupposes the establishment of a clear vision of partners’ interests and objectives, alternatives that are available to them, their resources, and responsible decisions.
The notion of recognition is associated with the development of intrapersonal skills with a particular focus on understanding between partners. With the achievement of empowerment and recognition, it becomes possible to eliminate anger, tension, and defensiveness due to becoming more compassionate and supportive of other partner’s feelings (Irving & Benjamin, 2002). There is a close interconnection between recognition and empowerment.
Empowerment provides support and encourages recognition, while recognition by the partner is empowering. When partners are recognized and empowered, they can combine their efforts to find solutions to difficult situations. However, the central focus of the transformative approach is not resolving all differences (Irving & Benjamin, 2002). The partners may keep disagreeing, but if they demonstrate personal development and growth concerning the process of mediation, the approach may be considered successfully employed.
Other mediation approaches, such as the stage theory model, therapeutic, procedural, problem-solving, and negotiation, are less suitable in divorce mediation because they concentrate on altering problems rather than people (Taylor, 2010). Meanwhile, the transformative model aims at changing people’s attitudes to the problem instead of behaviors. Folger and Bush suggested ten hallmarks of transformation that provide an explanation of this approach.
These concepts include such statements as “there are facts in the feelings,” “the action is ‘in the room,’” “discussing the past has value to the present,” and others which explain the essence of the transformative approach and demonstrate the difference between transformation and other models pointing out the benefits of the former over the latter (as cited in Taylor, 2010, p. 132). Transformative mediation presupposes trust and hope for a partner’s ability to be actively engaged in the mediation process, which will lead to reaching the best outcomes for both of them (Taylor, 2010). Therefore, this approach seems to be the most suitable in the divorce mediation process.
References
Bartelmie, S. (2011). Divorce mediation manual. Bloomington, IN Trafford Publishing.
Emery, R. E. (2012). Renegotiating family relationships: Divorce, child custody, and mediation (2nd ed.). New York, NY: The Guilford Press.
Irving, H. H., & Benjamin, M. (2002). Therapeutic family mediation: Helping families resolve conflict. Thousand Oaks, CA: SAGE.
Schwartzberg, O. (2009). Divorce mediation from the inside out A mindful approach to divorce. Tucson, AZ: Wheatmark.
Stoner, K. E. (2004). Using divorce mediation: Save your money and your sanity (2nd ed.). Berkeley, CA: Nolo.
Taylor, A. (2010). The handbook of family dispute resolution: Mediation theory and practice (2nd ed.). San Francisco, CA: Jossey-Bass.