Divorce Mediation: It's Time for a Revolution

by William H. Donahue, Jr., Esq., APM

Divorce is here to stay. The truth is, almost half of all first marriages and more than half of all second marriages will end in divorce. Social reformers and politicians can make it harder to get divorced, but there is little evidence that current statistics are likely to change much.

What can't be here to stay is the way people get divorced. The American divorce litigation system ruins lives, bankrupts families and scars children for life. If you have been through the system, you probably know what I'm talking about. You and millions of people just like you have put up with this antiquated system because of a belief that only divorce lawyers can protect your "rights." I am a divorce lawyer and I can tell you, this simply isn't true.

Guided by an experienced mediator, you can protect your own legal rights and resolve your own divorce. All you need is common sense and a basic understanding of the law and the principles of effective negotiation. Of course some divorces raise complicated legal or factual issues, and in those cases, the advice of an attorney is important. But even the most complex cases can be mediated with attorneys working in an advisory rather than adversarial capacity. Mediation is a cost-effective, civilized alternative for couples seeking divorce. Rather than represent either spouse, a mediator helps couples understand their legal rights and responsibilities, then works with them as they create a settlement that will meet their financial and emotional needs, far into the future.

While the immediate goal is to get divorced, the long-term goal of mediation is to achieve what mediators call a "good divorce." Constance Ahrens, Ph.D., has written a remarkably useful and insightful book called The Good Divorce. I recommend it to many of my mediation clients. To tell if a divorce was good, you need to look at all the family members several years after the divorce. They should all be thriving. To a mediator that means the parents have obtained financial and emotional stability and have developed new relationships, and children have reached their expected developmental stages.

Who should mediate?
The simplest answer is anyone who is getting divorced. It's a misconception that you and your spouse have to be on friendly or even on speaking terms for mediation to work. On the contrary, if you are angry, bitter and out for blood, you are the kind of couple who need mediation most. You are most likely to tear each other apart in court.

Aside from the fact that mediation will probably save you thousands or even tens of thousands of dollars in legal, court and expert fees, there are important emotional issues involved in divorce that mediation is better equipped to deal with. Because our divorce litigation system is adversarial by design, it does little or nothing to help you examine and work out issues like anger and depression. That's one reason many people come out of a divorce angrier than they were when they started the divorce. It's also one of the reasons the divorce rate is higher for second marriages than it is for first marriages. Mediation teaches you vital principles of communication and negotiation that you may have lost as your relationship deteriorated or that you may never have had in your marriage. Using these principles, you can learn to put aside your anger in order to reach a divorce settlement that serves your real, long-term interests. I have found over the years that as my clients learn to be effective communicators and negotiators, they develop a sense of empowerment and self-respect that dispels most of the anger and fear they bring to the divorce process.

If you are going to get divorced, you should learn about mediation before rushing into litigation. If you were ill, you wouldn't choose a course of treatment without learning about the alternatives. Why limit yourself to the traditional adversarial litigation system as a way to get divorced without finding out about the alternatives. Besides, you have little if anything to lose by trying mediation. If it doesn't work, you can always litigate your divorce.

When should you mediate?
The sooner the better. You and your spouse should see a mediator as soon as one of you decides to get divorced. This is especially true if one of you really doesn't want the divorce. Why not a lawyer first? The simple truth is that if you see a lawyer first he or she may try to convince you not to use mediation. Unfortunately, many divorce lawyers don't understand mediation or the benefits it can offer their clients. Some divorce lawyers will not represent you if you are planning to mediate your divorce.

Even though it is better to see a mediator as soon as you can, it's never too late to attempt mediation. Once involved in litigation, people often feel their divorce spinning out of control. Accusations are made and responded to. The divorce becomes a series of strikes and counter-strikes. Emotions are frayed and the cost becomes ruinous. Mediation offers you a way out. It gives you a chance to sit down face to face and talk. If you are already going through an ugly divorce, you may be thinking you could never do that, but you can and it works. People who have been trying to beat each other in the courts for months or even years can call a truce and work out their differences.

Mediation, more than anything else, encourages you to separate your immediate emotions and demands from real long term interests and needs. It teaches you to use time tested negotiation techniques and strategies to reach divorce settlements that will meet your needs. Finally, when you mediate your divorce, you keep control of the entire process. Most people find that to be not only rewarding, but empowering. They also find that the negotiation and communication skills they learn and use in mediation carry over into the rest of their lives. Many of my mediation clients have told me had better relationships with their ex-spouses because they learned to communicate and negotiation effectively in ways they couldn't before their divorce.

Having worked as both a divorce lawyer and a mediator for many years, I know mediation is a better way for most people to get divorced. In the last 20 years, mediation has revolutionized the way people settle disputes in business, industry, labor, neighborhoods and even international relations. It is time for a revolution in the way people get divorced.