The Mediation Movement in Family Law

The mediation movement in family law appears to be an evolution in response to the pain and waste associated with an adversarial, litigated divorce.

By Helen Stein, Family Lawyer

Countless times in my practice, I have heard the following sentiments from individuals who were and are still affected by divorce:

“If only my parents knew that they could have experienced a cooperative divorce, I would not have had to struggle the way I did when I was young…” or

“I have seen and experienced the effects of an all-out-war type of divorce and can honestly say that the world would be a better place for ex-spouses and children if more people followed your model,” and,

“What a great idea! My ex and I spent so much money when we divorced, and it was incredibly painful for us and our children, I wish we had just gone to mediation in the very first place…”

When adult children of divorced parents learn about the very real and uncomplicated option for couples to achieve a peaceful resolution, the pain they experience in that moment can be seen darting across their eyes, as they appear to recall a vivid and tumultuous time. One can almost feel the past nightmares, and know intimately the effects of the divorce, even though it may have occurred years and years before. Too many adults and children understand deeply the scars that are formed when a family is subjected to a traditional civil law process, which pits a mom against a dad, husband against wife, for the purpose of dividing the family; dividing the dollars, dividing or ripping at the ties that bind children to their parents, and dividing and destroying relationships among friends and extended family.

The Mediation Movement in Family Law vs. The Litigated Divorce 

The traditional adversarial process is no place for a family in transition. Consider that the conventional divorce is a lawsuit that requires the child’s father to sue his mother, or a wife her husband, so that a third party may order the couple to divide the time each will share with the children and divide all they have acquired. In the adversarial model of resolution, the individual does not control the process or the result and often loses sight of the goal to reach a solution that serves the family best.  On the contrary, the process controls the individual because this lawsuit structure is led by the parties’ representatives and contemplates taking positions, one against the other, in order to divide. Communication between the parties themselves is not called for in this model.  The method itself takes over and becomes the focus of the family’s transition, rather than the family’s needs and the solutions that might benefit the family post-divorce.

Now, think about a system that helps the family in transition – not by forcing, but by assisting the couple to share the family, by sharing the dollars, sharing the children, sharing the ties, the extended family and friends. This is my approach.  It is typically comprised of the couple, pro se, and one lawyer acting as mediator.  In the context of divorce, this kind of mediation offers families a collaborative, often therapeutic, resource promoting discussion, negotiation, facilitation, and ultimate accord. It’s one of the few methods of lawsuit resolution that elevates the necessity for communication, which is most likely the biggest challenge the couple faced in the “ending” of their marriage and also most likely the very skill the couple will need as they continue to raise a family, post-divorce.  The essential component of communication that occurs in pro se mediation is absent in the traditional divorce model. Communicating through their transition, in mediation, helps the couple reestablish the rules between them, and helps them form a new foundation for their relationship after divorce.

Mediation is a setting where families are best served, as the participants will address legal rights and responsibilities while incorporating effective ways to cooperate and share.  The concepts that will be “re-learned” in mediation are not new, but rather serve as reminders of what we know.  Indeed, the emphasis on sharing, rather than dividing, utilizes some of the same ideas we learned as early as kindergarten. In our earliest years, we learn how to share, cooperate, respect others, show kindness to friends (and importantly, to individuals who are not our friends); we learn to sympathize and empathize – to try to understand from the other’s perspective. These are the basic qualities we are taught in order to develop and maintain healthy relationships throughout our lives. Mediation, and pro se mediation in particular, is the process that will get us back to what we know is the civilized and appropriate manner for communication in our relationships. It helps the healing process.  Litigation will steer us far away from that.

Reasons Lawyers Should Consider Acting as Pro Se Mediator for Family Matters

After many years of advocating for children (as a lawyer for children, guardian ad litem, as well as a system advocate for child protection) and working in various roles in the areas of both divorce and dependency, I have concluded that the only positive way to help families through divorce is through mediation and collaboration.  In this capacity, as a mediator most of all, I have served hundreds of families as they have undergone transitions, many from intact and married, to post-married and blended. My approach now is always to employ peaceful process techniques for resolution. What I have observed throughout the years of practicing in this manner is that the vast majority of couples accomplish their goals peacefully and by agreement, leaving the mediation with a sense of true accomplishment. I have heard so many individuals express satisfaction for the way they went about the transition. The pro se mediation process offers divorcing couples a chance to choose a dignified approach to the ending of a chapter, where they are allowed and encouraged to maintain kindness and respect while achieving the legally sound result necessary for buy-in and comfort.

Family law attorneys may find that transitioning to a mediation-focused practice offers several benefits not only for clients, but also from a career satisfaction and smart business perspective. An increasing number of couples today are discovering and choosing an uncontested approach to divorce. Even more increasing are the numbers of pro se cases filed each year. Thus, hundreds of couples going through divorce are choosing to go it alone, rather than deal with a system, often too expensive anyway, where two lawyers will be hired to litigate their family’s issues.  I have found that when the pro se couples are offered the opportunity to hire one attorney serving as a mediator to help them with the issues involved, they are happily relieved and delighted to try it. Mediation for the pro se couple offers them the best of both worlds: saving money and minimizing emotional stress while getting expertise and guidance on the legal and non-legal issues with which they are faced.

In addition to the sheer numbers of unrepresented couples getting divorced, the family attorney will find a large market for a mediation practice for the many couples seeking assistance in transition, because of the following top advantages to clientele:

Privacy in the Mediation Movement in Family Law

The couple uses one attorney as a neutral mediator, working to empower each participant to identify and discuss his or her interests while helping to settle personal legal and non-legal issues involved in divorce.  The goal is to settle these very private matters outside of the public courtroom. Decisions are based on full disclosure. As in all divorces, the resulting, uncontested outcome of mediation sessions will be based, in part, on the parties’ full disclosure of pertinent information required by law. In the confidential setting, individuals may speak and share information freely, without embarrassment and fear that what is said could be used against them in the future.

Buy-In

In mediation, work is toward a consensus-based solution.  It is a safe space where the expression of feelings and differing views are allowed and encouraged while exploring what one wants and why. Both will have the opportunity to be heard, which can be a very important facet in settling any conflict, but especially important in understanding and solving conflict inherent in divorce. Equally compelling is the research findings that those who have been heard are more likely to feel satisfied having accepted the results, and more likely to adhere later to the terms of agreement. This essential opportunity to be heard is often lacking when the attorneys do the talking for the client, or when a judge with many cases to consider, cannot take the time to listen.

The Cost-Benefit Analyses in the Mediation Movement in Family Law

The cost to clientele to hire one attorney at the outset will be less than the cost of hiring two.  Further, the process is far less costly financially because working together to illuminate the facts does not rely on the formal rules of discovery. To the extent it is determined that more expertise is necessary, the party or parties use experts outside of the mediation process for use in mediation. Thus, it may be that a financial professional’s valuation or assessment is indicated or desired, a therapist’s recommendation called for as to the best interests of a child, or more disclosure necessary relating to assets or income. Using experts in this capacity, based upon the need to use one, and outside of the process itself, is much less expensive than the formal discovery process, where often the client pays for everything concurrently and as a matter of course.  For added protection and still mindful of cost, the mediator might emphasize, as I do, that each party should obtain an outside review by his or her own attorney prior to final execution of the mediated agreement.

Workable, Legally Sound Plans

Importantly, as part of the process, the mediator-attorney provides pertinent legal information and offers direction to the parties so that the resulting plan will address soundly, this family’s circumstances. With this guidance, the parties make educated decisions that pertain to their lives, they maintain control of the final terms of their own agreement, and they are never surprised by the resulting court order. Of course, mediation is not just for couples seeking a divorce as the outcome. Sometimes couples can work through this process to establish a temporary agreement when they are uncertain of the goals and have not made a final decision to terminate their marriage.

Preserve the Family

One of the best components of mediation is that the mediator-attorney can help a family develop terms, no matter how creative, that assist the individuals with particularities present in their lives. The plan is tailored to meet the needs of their unique family and is not a boilerplate, catchall-type contract.  Thus, successful divorce agreements can be mediated to contain measureable goals and obligations relating to the need for therapy, substance-abuse recovery, and medical intervention without using punitive, blaming and shaming techniques. Such plans, created with the permission and help of the parties themselves, will embrace the challenge of doing what is best for their children, and also will serve well the parents who are already experiencing stress, because it is handled in a non-blaming and respectful fashion.

Efficient, Pro-Family Decisions

The mediation model provides for discussing real interests, without judgment, so that the parties are able to consider options for mutual gain. Consider the orange a subject of dispute. In litigation, it will be cut in half or will wholly belong to one party. In mediation we discover what each party wants, that one wants the juice, the other the peel for zest, and the agreement is thus formed.

Court intervention where “positions” are expected is not a logical venue for resolution of a family’s private matters. Before and after divorce, the parties will attend to their finances and raise their children without the involvement of a court.  Reliance, therefore, on a court’s judgment is misplaced. A court order alone does not help the divorcing individual or the family, when faced with future financial and emotional situations that inevitably occur throughout their lives. The process of mediation is a good model for resolution of issues as they arise, and having made the transition from married to not married, through discussion and accord, a couple is more likely to continue this type of communication, helping to foster the post-married series of agreements that are necessary through time.

The Legacy for the Client and the Mediator

Achieving a divorce through the process of mediation can be the first step in a couples’ challenging and healthy transition. Research shows that how parents go about the process of divorce is the most important factor in predicting success for their children and also probably for themselves.  When a couple is at the end of a marital journey, the system used to dissolve the legal relationship should be a resource relied upon by the family that is supportive of a positive transition, rather than the ingredients for battle. By offering such a resource, we as attorneys have the opportunity to assist families to form a new foundation for their post-divorce communication. The adult children of divorce whom I encounter every day would love to be that guy who grew up in the incredibly healthy post-married family unit, which includes a mother and a father that didn’t destroy his or her partner or spouse.

Ralph Waldo Emerson states it best, “The real and lasting victories are those of peace, and not of war.

Helen Stein is an attorney licensed in Florida and New York; a Florida state-certified mediator in dependency, family and circuit civil law; and a Collaborative Family Law Institute member. She opened a mediation business in 2005, which later became affiliated with Divorce Without War®. Helen is co-owner and President of Divorce Without War USA, which is currently franchising offices throughout the US. DivorceWithoutWar.com

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