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Return to About Divorce, Family and Relational Mediation Contemplating Divorce? Consider
Mediation by Philip Mulford
mediate.com
August 2006 Mediation
is an especially effective process for resolving issues that arise when a
couple contemplates divorce. Mediation
allows a husband and wife to make the decisions that are going to affect them
and their children for the rest of their lives. Since a husband and wife
remain the experts on their marriage and family even under the most troubling
circumstances of divorce and since the results are going to affect them
directly, they should control the outcome. Mediation gives them control. Mediation gives a divorcing couple the
opportunity to develop a plan that specifically addresses a family’s
unique needs in a positive, structured environment where the mediator
facilitates effective communication and problem solving. By enabling a couple to remain in
control, mediation allows spouses to make the best decisions for their family
and customize an arrangement that accounts for the specific uniqueness of
that family.
Moreover, it helps a couple communicate in a positive fashion at a time when
the opposite is more likely. Mediation
is neither adversarial nor argumentative, but rather cooperative and collaborative.
The inherent nature of the process of mediation saves time and, therefore,
money. Mediation tends to minimize and resolve differences rather than
exaggerate and inflame them. Mediation tends to look forward rather than
back. By giving spouses the opportunity to hear each other’s reasoning and
ideas directly, each spouse is in a better position to structure mutually
acceptable arrangements. How
often does a newly divorced couple walk out of divorce court amicably
discussing their court-ordered visitation arrangement? Ever? Constructive
post-mediation discussions between couples occur quite often, mostly about
the substance discussed in that mediation session. Mediation gives couples the opportunity to begin the process of
accepting an entirely new mindset about a quite frightening prospect.
Mediation helps couples reconnect and regain control of their lives. Mediation
allows couples to be accountable to each other and acknowledge their own
participation in the breakdown of the marriage where each can recognize that
neither is without fault and both can accept responsibility. Mediation gives
the couple the chance to test the prospect of reviving the marriage or
confirm that divorce is the better alternative for them. Mediation utilizes
the couples’ energy to create customized, specifically tailored arrangements
that take each other and their children into account. When it comes to the
children, mediation encourages collaboration between the two most
knowledgeable, experienced and qualified experts in the field - the mother
and the father. By
the time a couple contemplates divorce, enough destructive forces have
already been at play. Unfortunately,
the traditional adversarial process of divorce litigation tends to cause
further destruction of interpersonal relationships within the family. Divorce
litigation undermines any vestiges of trust left between a husband and wife.
Divorce litigation converts a marriage into a battleground that serves
neither - even the eventual courtroom “winner.” (As used in this article, the
term “divorce litigation” is not limited to courtroom time, but also includes
the arduous and expensive process called “discovery” and related motions,
even when the case settles out of court.) The
substance of a marriage and a family is not property, financial assets, and
financial liabilities. The substance of a marriage is the interpersonal
relationships between husband, wife, and children. Divorce doesn’t change the
substantive issues from the people and their relationships to those of
property and finances, but divorce litigation tries to do just that. Divorce
litigation does not address the more important, continuing, and substantive
interpersonal issues. Mediation,
on the other hand, addresses those interpersonal issues directly. Mediation helps a couple communicate when
simply talking seems impossible - at a time when, especially with
children involved, post-divorce communication will be even more critical.
Once the people issues are addressed, the property issues become less overwhelming
and a comprehensive plan to address those important issues can be
constructively created. Divorce
litigation fuels and feeds off of overwrought emotions. It’s easy to
understand why divorce lawyers operate on a retainer basis. Their clients will
often be unhappy with the results. Too often clients walk out of divorce
court disenchanted with their lawyers, the judge, and the system. It’s no
wonder judges who handle divorce cases suggest that court is not the place to
resolve the issues of divorce. Despite
the limitations of the adversarial system, I am by no means suggesting that
mediation replaces the need for legal counsel. Mediation is not a substitute for a lawyer and legal representation.
It is, in fact, a substitute for the courtroom battle and the adversarial
process preliminary to it. Effective legal counsel in mediation, however,
requires counsel to serve a different, non-combative, role. A lawyer in
mediation needs to be able to honor the decision-making authority of the
client while advising that client of the legal consequences of any proposal.
By advising clients of the legal consequences of any particular proposal, the
lawyer provides the client with the information the client needs to make
informed decisions. In
addition to legal counsel, I always encourage my clients to obtain tax,
financial, and any other professional advice that either of them needs to
make fully informed decisions. But at the end of the day, clients in mediation remain in control of
the decisions that will affect them and their children for the rest of
their lives. They create mutually acceptable, customized arrangements that
only they could have crafted. They move forward out of a peaceful process
that prepares them for their new lives. Isn’t that the way you’d want it to
be? Philip Mulford is a full-time, professional mediator. Formerly an
attorney, Mulford practiced law from 1982 until 1990 when he founded Mulford
Mediation. With offices in Fairfax and Warrenton, VA, Mulford Mediation
provides mediation services to families and businesses - recently including
healthcare professionals, attorneys, realtors, and senior management teams. Presented by Philip Crump,
Mediator & Facilitator Return to
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