The Second Best Reason For Mediating Divorces/Martin Rosenfeld

Posted on January 7, 2013


There are many reasons in favor of seeking to mediate a divorce process. The first reason is the need to protect and shield children from the trauma of protracted, and public, divorce battles. However, not every couple has children. Not every couple has children who are still living at home. The concern about children’s well-being in such cases is either not applicable or greatly diminished. However, there is a second consideration that affects all divorcing couples. In divorce mediation, the opportunity exists for the couple to create solutions to their concerns that are positive and creative. This becomes possible through the means of direct, face-to-face communication. Divorcing couples who have made a commitment to avoid litigation will not be bound by Court order, expensive trips to the courthouse, and never-ending court-ordered deadlines. They can speak out all the options they see and then winnow them out until one or two capture their imagination.

I once mediated a divorce for a couple who both felt that joint physical custody was in the interests of their children. They felt that the children could handle weekly shifts between the two parents and their respective homes. Without the intervention of attorneys, they concluded that it would be wise to obtain professional opinions about the impact of such an arrangement on their children’s post-divorce adjustment. Each party chose a therapist and the two parents then visited the therapist together. Two therapists and two parents. We can all guess what happened. One therapist said this was a wonderful idea and one said it was a terrible one. We had discussed this possibility in advance of their visits. What did the parents ultimately decide to do?

Father and Mother discussed their reactions to the meeting with the therapists. They agreed that any decision had to be based on the needs of the children. But what did the children “need” in this situation? The couple decided to try the concept of joint physical custody for no more than 6 months. After this trial period, they would exchange ideas on how the arrangement was working, discuss matters with the children, and then decide whether to continue with this arrangement? Their proposal was creative and it was flexible. Could litigation have yielded the same result? I leave that to the reader’s imagination. But there is one truism at work here. When parties can do so well with communication and professional advice, why even think of litigation. Mediation works; it can lead to creativity in matters, children-related or otherwise. Talking and civility will always trump confrontation. It is well worth the effort and investment of time.