Introduction

During the last decade, mediation has emerged as an increasingly popular way for couples to avoid the high emotional and financial cost of litigated divorces. Rather than pay lawyers to negotiate the terms of their divorce, couples sit down with a neutral intermediary (their mediator) to discuss and agree on a fair and reasonable settlement.

In mediation, spouses maintain control of their divorce rather than turn it over to lawyers and judges. They also avoid the adversarial nature of our litigation system. Instead of fighting each other to "win" all they can, they cooperate to achieve a result they both can live with. Even couples who don't resolve all their issues in mediation usually agree on many of them. That means fewer questions for their attorneys or their judge to decide and therefore less conflict and less expense.

Why this sudden growth of interest in something that has been around since New Testament times? The simple and probably best answer is that divorce mediation works and it works exceedingly well. A more complex answer is the public's growing dissatisfaction with the adversarial process of our legal system. Another answer is the mental health profession's research findings that indicate that children of divorce are harmed more by their parents' conflict that by any other single factor.

What is divorce mediation?

Divorce mediation is a communication process by which a husband and wife resolve the practical and emotional issues of divorce or separation in a mutual, co-operative manner as opposed to an adversarial, competitive manner. Using a neutral mediator to guide the couple's communication, mediation allows couples to make the best possible decisions in the settlement of their divorce, even though they may be in great turmoil and conflict. Given the two parties different values, different abilities and limited resources to face the future, mediation provides a participatory process for them to achieve a successful termination of the partnership that has created children, shared income and accumulated assets. The goal is for each of them to receive the best settlement possible that will satisfy to the greatest extent possible their respective needs and interests, now and in the future.

When a husband and wife divorce, the pain of the conflict can become infinitely damaging to the entire family. One of the goals of divorce mediation is to prevent this conflict from becoming destructive. Unfortunately, as a society we have given little assistance to families in divorce and in most cases we have unknowingly generated more harm and pain through our adversarial system of justice. In fact, our society has constructed a legal remedy for resolving the divorce conflict that is completely antithetical to basic principles of humanity. At the point couples embark on the process of separation and divorce, society advises them to get a zealous attorney to protect themselves. In order to be successful in an adversarial divorce, couples learn to view their spouse as an adversary, resulting in a billion-dollar industry that often generates more conflict and pain for the couple and their children. Because of the nature of the adversarial system, zealous representation is required...even demanded. An attorney who may wish to take a balanced view may be accused of providing weak and ineffective representation. Divorce mediation is an attempt to establish a more humane, cooperative approach to divorce settlement.

How mediation differs from litigation

Divorce requires a lawsuit. One of you must sue the other in order to dissolve your marriage. In doing so, you automatically become adversaries. The law says so.

Is this really a "sane" way to end a marriage? Were you dissolving a business, you would not follow this archaic pattern. You and your partner would visit an attorney together to discuss the terms and prepare the paperwork. Unless it was unusually contentious, the business dissolution would be accomplished without a lawsuit. But our legislatures require that all divorces be conducted as hostile encounters.

Mediation is an attempt to remove your divorce from the adversarial arena of the courthouse. Although you can't avoid a lawsuit, you can avoid the bloody battle. You can choose to sit down with your spouse and a mediator and work out the terms of your divorce fairly and sensibly.

The role of the mediator

Getting divorced is like driving on the beltway in a fog so thick that you can't see more than a few feet in any direction. The decisions you make are critical; a mistake can cause serious damage. But because you can't see the other cars or the road ahead, you don't know which way to turn. You're likely to end up yelling at the person in the passenger seat, who is just as scared as you are and no more able to see clearly.

Couples going through divorce are often caught up in the fog of emotional turmoil. They can't think clearly. They can't see possibilities crucial to their well being. They're so hurt and angry that rational discourse doesn't have a chance.

An experienced divorce mediator is like a driving instructor helping you navigate. Standing outside the fog, he watches your progress, points out when you're about to go off the road or run into another car, and guides you through the treacherous turns on your way home. He also helps you make reasonable choices in a co-operative atmosphere rather than one rife with demands and accusations.

Every mediator has his or her own style of mediation. I am an “issue based mediator”. I keep my clients focused on the issues that need to be discussed and resolved in order to come up with a fair and equitable agreement. I’m not a “therapeutic mediator” (eventhough I have been told that there is a tremendous amount of therapeutic benefit for couples who have gone through the mediation process). I believe that couples who want and need therapy should use the services of a qualified therapist. Therapy is their expertise…problem resolution and helping my clients create a fair and equitable separation agreement is my forte.

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Owings Mills Mediation
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