Mediation Makes Sense But It’s Not For Everyone

Mediation Makes Sense But It’s Not For Everyone

The adversarial process applied to divorce and child custody is expensive. It costs a lot of money at a time when the parties should be conserving their financial resources. It costs a lot of emotional pain when the parties have already had enough pain. It leaves scars on the husband and wife but, more importantly, it leaves scars on the children. The difference between the adult scar and the child scar is that the child’s injury is magnified by a frustration of his or her developmental needs at the time.

For example, a very young child may need physical nurturance and safety more than anything else and much more than a twelve year old. However, if the parents are embroiled in an adversarial divorce, then these needs may be largely unmet or met in an excessive and bizarre fashion. The critical issue is that the “developmental window”, during which meeting or not meeting these needs is accomplished, does not remain open forever. The child passes through this stage and appears to have weathered the parents’ problems but, in fact, the child has not weathered these problems and his or her developmental trajectory will be changed forever. The effects of this change may be latent and may not appear until the teenage years or adulthood and probably will never be properly connected to the parental strife but the connection is there and will be obvious for all with the courage and perspicacity to look and see.

Contrast this to the plight of the teenage child of divorcing parents. His or her needs are very different and, for example, may reflect a struggle for autonomy and independence. One or both warring parent may need to lean or depend on this youngster, perhaps by discussing parental problems, and the teenager is pressed into service as a so-called parental child, i.e., the child who takes care of the parent’s needs. Children do not have to be asked to assume the role of parental child. In many cases they sense what is needed and respond accordingly. Never having resolved issues relating to independence and autonomy, this teenager may be the one who grows up to be excessively dependent or excessively independent such that adult relationships are problematic.

The bottom line is that the developmental needs of children cannot be put on a shelf until the parents finish fighting with one another. Children’s needs must be met within a reasonable time of their emergence.

If divorcing parents are not swayed by the needs of their children, then they might be influenced by their own financial and emotional needs. Divorce law has developed to the point that there are not many unknowns about who will get what asset or how much alimony will be paid. After one or two sessions with a client, I usually provide a comprehensive estimate of how the case will eventually settle. Some lawyers seem to not do this or to do it very poorly but, I would imagine that most competent attorneys would come to approximately the same point.

If the net assets in a case are $1,000,000.00 and the lawyers on each side differ in their allocations by 10%, then there is $100,000.00 at stake. A 50/50 division of this difference would yield $50,000.00 to each party. If one lawyer is particularly astute and effective, her client might wind up with $65,000.00. In this zero-sum game the other party would wind up with $35,000.00. Now, was it worth paying an attorney between $200 and $400 per hour (that’s $400 to $800 per hour for the couple), in order to wind up with a $15,000 victory? And what about the “loser”? Was the loss worth it?

In the meantime, while you are damaging your children and dissipating your assets, you are not getting any younger and your life is on hold in every conceivable way. Wouldn’t it be better for you and for those you care about to find a problem solving solution that had fewer negative side effects?

This is where I believe that mediation can help. I suppose some may feel that aspiring to limit the negativity and injury in divorce is “unrealistic” and that parties are “irrational” and not susceptible to the mediation intervention. I agree that resolution of an important and emotionally charged relationship can be difficult, especially because of the influence of factors and feelings that are not readily accessible to the parties. Launching into a mediation without dealing with these preliminary issues can have catastrophic results. The mediator has to be attuned to the varieties and levels of the mediation dynamics and use these to work toward a resolution. For example, I cannot claim that there is strong scientific evidence that mediation is less expensive than the adversarial process. This issue has not been studied in a satisfactory manner. However, it is common sense that parties working on a divorce resolution with one professional would incur less expense than parties who are paying two separate attorneys.

A successful meditation usually involves the parties retaining a separate attorney to review the memorandum of understanding, but this typically occurs at the end of the process and costs a nominal amount.