Willy Gallant's blog ::The Walden Family and the Terrible,Horrible, No Good, Very Bad Friday
Despite popular belief, there are actually four ways to end a marriage. These four ways are litigation, arbitration, negotiation and mediation. (McKnight & Erickson, 1999, p. 9) Divorce mediation is becoming an increasingly popular method of dealing with the divorce proceedings. There are many positive aspects which make divorce mediation affordable and less stressful than traditional litigation. Divorce mediation offers the opportunity for parties to settle their differences while dividing the assets and maintaining control over the divorce process. Divorce mediation is a growing field which is continually expanding and should be utilized to guide couples to find a way to deal with one another in a mature manner, especially when children are involved. In my paper I will discuss the history and developments of divorce mediation. I will also asses the effectiveness of divorce mediation and the current issues related to divorce mediation. I will also discuss the importance of a neutral mediator in the divorce process. Lastly, I will give suggestions for improvements which could be made in the field of divorce mediation. The History of Mediation Mediation is thought to have begun in the ancient times before the birth of Jesus Christ. (MediationADR.net) However, this ancient method of conflict resolution still continues to this day in many new formats. Mediation was developed as a way to solve the increasing number of conflicts as populations grew. Mediation was, and is still used in religious and non religious settings such as churches, "kinship circles", villages, and the religious group the Quakers. (Mediation.ADR.net) I would like to start by explaining what divorce is. Divorce can be simply explained as the ending or dissolution of a marriage before the death of either spouse. Divorce also has historic roots in the world. It is estimated that the divorce process actually dates back to the times of Mesopotamia. (Wikipedia) Divorce was not easily granted during those times, the proposal must be submitted to the magistrate. Once the request was submitted to the magistrate, it would then be decided if the reasons submitted were sufficient to grant the divorce. During the Roman era, couples would "renounce their marriages at will". (Wikipedia) After the 10th Century, divorce was generally prohibited. Things have significantly changed since those times. Divorce must be granted and is not taken as lightly as it was previously. There have been steps which have been taken to try and decrease the divorce rate. Some of the ways that divorce rates are being decreased is by mandating parenting classes and mediation to see if the marriage is reconcilable. I will discuss these mandates throughout the paper. The Development During the last few decades, mediation has grown immensely due to increasingly high divorce rates. (Emery, Sbarra & Grover, 2005, p.1) The burden on the courts is another substantial reason why mediation has become a popular method for deciding divorce cases. The primary reason that mediation is used in divorce is because it can pose less stress on the divorcing couple and the family relationship, especially where children are concerned. (Emery, Sbarra & Grover, 2005 p. 1) In the late 1960's the "divorce rates escalated rapidly in the United States". (Emery, Sbarra & Grover, 2005, p.2) In today's society, it is estimated that 50% of marriages will end in divorce. This percentage increases with each subsequent marriage. The statistics show that those who are married a second time are at a risk for divorce at 67%, and by the third marriage the risk increases to 74%. (AboutDivorce.Org) Divorce mediators can work in the private sector as well as in the public sector. The parties will need to decide which type of mediator is right for them. In the "private sector mediation replaces the conventional method of negotiation through lawyers". (Singer, 1994 p. 38) Mediation does not however eliminate the need for attorneys in some cases. The divorce mediation process is about finding a resolution that the parties can live with, while taking the attorney out of the equation as much as possible. As mentioned before there may be extenuating circumstances which require both mediation and litigation. The traditional method of getting divorced can be compared to the "children's game of telephone". (Singer, 1994, p. 38) Instead of discussing the issues face to face, the laywers tend to use shuttle diplomacy to find resolutions to the conflict. There is nothing wrong with this method but with some situations it is not appropriate. With this type of negotiation the entire point of the conversation can be lost. The parties are not in control of their destiny so to speak. When parties use attorneys to represent them, they are in essence relinquishing their rights to make the judgment call about what is appropriate for them. The reason for this is because those parties begin to misconstrue what the other party has said due to the adversarial nature of the process when using an attorney. Mediation focuses on the problem, not the people. The problems should be the focus of the discussions, and not what he said she said type of mentality, or you hurt me so I am going to get you. Unfortunately, when divorce is litigated the issues are not always addressed and people may feel that they have not been heard. The Effectiveness of the Process and the Mediator Divorce mediation works for many reasons. Three reasons why it works are as follows: It can help alleviate the stress and costs associated with traditional litigation in the court system. Both parties are generally working together in a voluntary manner for the common goal of a peaceful resolution. The mediator serves as a guide to the parties by "assisting the parties with communication, clarifying and developing options to resolve conflict". (McKnight & Erickson, 1999 p. 9). In the regards to the cost and time, research has found that many couples were able to settle their disputes in "about half the time" when their divorce was decided through mediation versus the traditional method of litigation. (Emery, Sbarra & Grover, 2005, p.5) It can also be significantly less costly and time consuming than the traditional divorce process. (Emery, Sbarra & Grover, 2005, p.5) The main concern with any type of dispute is that the parties will be able to come to a resolution, and be able to follow through with the decisions that have been made. With mediation, the couples involved in divorce mediation are "more likely to adhere to the agreements reached because the process is more cooperative and because parents will feel increased ownership over agreements that they reach on their own". (Emery, Sbarra & Grover, 2005, p.5) On average, "party satisfaction was higher" in cases which mediation was performed in comparison to the traditional adversarial methods of litigation. Parties stated that they felt that they were heard, and their feelings were understood. More parties were "satisfied" with the results of mediation in the long run, than parents who were exposed to the traditional route of litigation. (Emery, Sbarra & Grover, 2005, p.5) An effective mediator must be able to remain impartial which can be difficult in cases which are highly stressful or chaotic. The divorce mediator should be experienced with adequate training and the ability "to help the parties base their decisions on sufficient factual data." (Mediate.com) The mediator must also be able to examine the cultural differences is any, and has an understanding that not all cultures are the same. The interest of the children is critical and should be taken seriously in divorce mediation. The mediator should also be aware of signs of "domestic abuse, or child abuse". (Mediate.com) According to the "Model Standards of Practice for Family and Divorce Mediation" there are steps which must be taken to be an effective and ethical mediator. (Mediate.com) As an effective mediator, they should be able to "serve as a guide for the conduct of the family members." (Mediate.com) This can be done by modeling appropriate behavior and not allowing personal attacks against each other. The mediator must also remember not to play into the emotions of either party. The mediator is also responsible for thoroughly explaining to the participants what "they can expect" from the mediation process. (Mediate.com) The mediator should also promote "public confidence in the mediation process." (Mediate.com) This can be accomplished by demonstrating that mediation is a dignified process which helps to provide the parties with real, acceptable solutions to their disputes. Unfortunately there are still only "loose standards of practice" set forth by the Society of Professionals in Dispute Resolution, the American Bar Association, and several others. (Singer, 1994, p. 40) This is one of the reasons why it is so difficult to "evaluate" a mediator. (Singer, 1994. p. 39) In many cases, mediators are referred to parties by word of mouth based upon experiences that other people have had or know of with that mediator. Although mediators can be found many other ways, online, the phone book, articles and of course recommendations just to name a few. (Singer, 1994, p. 40) There are of course other important aspects of the private sector divorce mediator's comprehension that should be examined before utilizing their services. The first is that the mediator should be familiar with the "laws governing separation in their jurisdiction". (Singer, 1994, p. 40) The second aspect of great importance in choosing a mediator is whether or not the mediator "posses some basic counseling skills, can they empathize with the parties? can they remain neutral? are they a good listener? (Singer, 1994, p. 40) Divorce mediation can also be available in the court setting. These in court mediations are sometimes provided by "social workers, volunteers, or private contract mediators". (Singer, 1994, p. 41) There is a substantial difference between the private sector mediation and court mediation in the way that the court mediation deals primarily with "child custody and visitation rights." (Singer, 1994, p. 41) Private mediation deals with solving concrete problems and not just child custody and visitation. This is not to say that these are not important issues, but due to the limited resources of the courts they must limit the mediation to the most important issues in the divorce process. To reiterate, it is up to the parties to decide which type of setting and mediator will be appropriate for their situation. That is of course provided that the parties have the opportunity to choose their own mediator. Some people may not be allowed to choose the mediator, it may be court ordered to solve the dispute. Current Issues In the world that we live in, we are unable to avoid conflict with others. It is a part of what keeps the world interesting and the opportunity for differences in opinion.Unfortuantely, divorce has seemingly become an epidemic in our modern lives. This is a serious concern because it has almost become too easy to divorce your spouse. In the State of Colorado, the parties must first meet the filing requirements for divorce. This means that the parties must satisfy the requirement that the "marriage is irretrievably broken". (Divorce Source.com) In some cases, counseling or mediation may be a requirement. "If reconciliation seems possible, or the two parties do not agree that the marriage is irretrievably broken, then upon the request of the court or parties involved in the case a counseling period not less than thirty days nor more than sixty days later, or as soon thereafter as the matter may be reached on the court's calendar". (Divorce Source.com) In many cases, it is not uncommon for divorcing couples with children to be mandated to complete a parenting class before they can proceed with the divorce. It has come to light the significant damage that can be caused by divorcing parents. This can include behavioral and emotional problems by the child. With the increasing amount of divorce it is important that people understand that there are other options available to them to work out their disputes and dissolve their marriage. Divorce should be dealt with in a dignified and process oriented manner that provides the parties with the best options for success for maintaining the agreements that they have come to. This is of course easier said than done, but if the parties work together in a voluntary basis the agreements are more likely to be upheld. The importance of a Neutral Mediator in the Divorce Process In divorce mediation, it is not uncommon that the main issues may be substantive issues, which involve "money and time". (Moore, 2003, p. 75) The majority of the issues which are substantive may surround who will get the house, cars, bank accounts and even the children. Time is also a valuable commodity for people going through a divorce. Parenting time is crucial in cases where the children are still living at home with one of the parents and the other parent has visitation. Things can obviously become quite complex when it comes to these types of situations, and that is why the mediator must be aware of the local laws and regulations regarding these matters. It is thought that "the best decisions are often arrived at by the parties" which also leads to the importance of a voluntary commitment to settling the disputes between the parties. (Moore, 2003, p.78) The mediator in the divorce process should serve as a guide for the parties and offer "procedural help" but not unsolicited advice. (Moore, 2003, p. 78) Due to the fact that divorce is often an emotional experience for the parties, the mediator must not show any emotions that would lead either party to believe that there may be a bias for or against one of the parties. If by the slightest chance the mediator "lets their emotions surface", the neutrality has been destroyed, and the trust and credibility will be destroyed. (Moore, 2003 p. 65) If the mediator fails to disguise their emotions it can also create a power imbalance between the parties and there will be difficulty in cooperation between the parties. That is why it is crucial for the mediator to ensure that the power has been "equalized". (Moore, 2003, p.71) In order to make the parties feel that they are being allowed to be in control of the process the mediator should "allow the parties to "agree and disagree". (Moore, 203, p. 64) Conflict is why the parties are there, in order to solve the problems that must be solved in order to salvage their sanity, and dignity, it is not the place of the mediator to judge the parties. An ideal type of mediator for settling divorce cases would be the benevolent mediator. The benevolent mediator "seeks the best resolution for all parties". (Moore, 2003, pp. 44-45) While it should be known that this type of mediator does not have a vested interest in the outcome, they may "use their available resources to help monitor or implement the agreement between the parties". (Moore, 2003, pp. 44-45) The benevolent mediator will not use their influence to impact the outcome, the outcome is based upon the work of the couple based upon their individual needs. There is one other type of mediator that may be appropriate for the divorce mediation process. The Administrative/Managerial mediator may currently or previously have a relationship with the parties. This may be a close friend, an attorney or someone that both parties have worked with and trust, or an unknown person. This type of mediator may be a great idea for a couple who cannot make certain important decisions for themselves. For instance, the divorcing couple cannot decide who should get the china or other gifts they received while they were married. This would be an opportunity for the Administrative mediator to make that decision based on the facts and fairness of the situation. This type of mediator "does have the power to make decisions and enforce agreements between the parties". (Moore, 2003, pp. 44-45) Possible Improvements in Divorce Mediation After a significant amount of research in the field of divorce mediation, I have come up with a few suggested improvements. The first area for improvement is to make mediation readily available and affordable to everyone regardless of ability to pay. While there are numerous States that have mediation programs for divorce there are still not enough. Many States require that the parties utilize mediation before proceeding through the courts to decide their divorce. This would take a significant burden off of the courts if the parties could willingly work together to make the decisions that can be very time consuming and costly in the traditional court setting. When Mark Loye, visited our class during the first weekend, we learned about the Jefferson County Mediation Services. Programs such as the Jefferson County Mediation Services are a wonderful resource for mediation. They also provide a resource for saving the courts and parties money. Some of the cases that they handle are divorce, complaints, disputes, landlord tenant issues, and many more. As mentioned before, the availability is there, it is free in cost, it saves substantial amounts of time, money, and it can be highly beneficial to all parties in creating their own resolution. The Jefferson County program also offers convenient times for the parties to mediate, weekends, evenings and daytime hours. The dispute must however be referred to the program for mediation. The State of New Jersey also incorporates mediation into the divorce process. New Jersey has a pilot program which orders parties who have been unable to settle their financial issues to attend mediation. The parties are then ordered to meet with a "court-approved mediator" to discuss the unresolved issues. (Imbalzano, M. 2006, p.1) Unlike the traditional divorce process, mediation does not "pit the parties against one another", in which they try to out- do, out smart and win over the other party. (Imbalzano, M. 2006, p.2) mediation is a "non-adversarial process" in which the parties are given a safe environment to discuss their problems and work out resolutions. (Imbalzano, M. 2006, p.2) I also feel that on-going training should be a requirement for anyone involved in the field involving divorce, primarily in regards to protecting the children in divorce. Due to the fact that children are vulnerable and can be emotionally scarred by conflict, there should be more protection for the wellbeing of the children. This may entail providing referrals to family mediation or counseling services to ensure that the critical relationships between the parents and children are not damaged or destroyed. The training should also involve ways to deal with difficult people, different cultures, and divorce when children are involved to protect the interest of the children. The only draw back to this that I can see is who would monitor this kind of program? Specifically since in Colorado mediators do not need to be licensed or certified to practice, it would be difficult to monitor. The main concern is that couples with children who divorce may hold volatile feelings towards the other spouse and while they may never want to see the other person again, this is most likely not an option. Unfortunately, the parents may hold these angry feelings against one another but at the same time they are hurting and essentially "divorcing" their child as well as their spouse. (Emery, Sbarra & Grover, 2005, p.7) With this thought in mind, the use of mediation and court approval should mandate the participation of the parents in the children's lives, provided that they were involved on a full time basis prior to the divorce and they are not considered to be a danger to the children or themselves. It is unfair for the children to lose their stability due to the parents being unable to maintain a relationship. Unfortunately, this type of mandate is also difficult to monitor due to the significant amount of divorces which take place. The divorce process is a difficult situation but many times the children are the ones who suffer the most. I can speak from personal experience that I have seen this happen one too many times. Situations in which the parents get divorced and the absent parent does not pay any child support or help in anyway or worse yet they just disappear. However with the use of mediation, if the parents can try to find a way to work together, and make the agreements themselves they are more likely to stick with it and provide their children with a stable life. Conclusion In my paper I discussed the history and developments of divorce mediation. I also assessed the effectiveness of divorce mediation and the current issues related to divorce mediation. I will also discuss the importance of a neutral mediator in the divorce process. Lastly, I gave suggestions for improvements which could be made in the field of divorce mediation. It is clear that divorce is continually growing field which requires individuals with the knowledge and experience mediation or litigation to help the parties make decisions. However, more importantly is the experience and neutrality that is required to mediate these some times problematic dispute. References: http://www.aboutdivorce.org/us_divorce_rates.html Site: http://www.divorcesource.com/info/divorcelawsreq/colorado.shtml Imbalzano, M. P. (August 14, 20060. Mediate or litigate, New Jersey Law Journals, p. NA. Retrieved February 10, 2008 From Legal Trac via Gale:http://find.galegroup.com/itx/infomark.do?&contentSet=IAC- Documents&type=retrieve&tabID=T002&prodId=LT&docId=A149443789&source=gale&userGroupN MediationADR.net (2008) History of Mediation. Retrieved, February 10, 2008, from Mediation ADR.net Web site: http:// mediationadr.net/Conflict/InformationPublic-Meds/History.html McKnight, M. & Erickson, S. (1999). Mediating Divorce: A Step-By-Step Manual.1st Edition, San Francisco, California, Jossey-Bass Moore, Christopher W. (2003). The Mediation Process: Practical Strategies for Resolving Conflict, 3rd Edition, revised, San Francisco, California, Jossey-Bass Singer, Linda R. (1994). Settling Disputes: Conflict Resolution in Business, Families, and the Legal System, 2nd Edition, Boulder, Colorado, Westview Press Spangle, M. & Isenhart, M. (2003). Negotiation:Communication for Diverse Settings. Thousand Oaks, CA; Sage Press. Free encyclopedia Web Site: http://en.wikipedia.org/wiki/Divorce Emery, R., Sbarra, D. & Grover, T. (2005). Divorce Mediation: Research and Reflections. Family Court Review, 43, 1-9. |
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