What do people in business do when they're facing a crisis? They ask, "What's the best practice to follow in a situation like this? What do successful companies do?"
Our society would benefit greatly if divorcing parents could be convinced to ask, "What's the best practice now that our marriage is over? What have others done in our situation? What dangers should we avoid? What path should we take?"
Of course a marriage is not a business. Its end is more often marked by regret, anger, and revenge than by the ability to ask wise, logical questions. However, we in the West have had enough experience with divorce to know that there definitely is a best practice for divorcing parents to follow.
It's called mediation, a voluntary process with an impartial third party, a family mediator. The mediator helps couples identify, clarify, and come to an agreement on the major issues between the parents for the sake of the children. Each parent retains a lawyer during this process, but the goal of everyone involved is to avoid the emotional and financial costs of pursuing divorce through the adversary court system.
I have mediated more than two thousand cases over the past three decades. I have learned that if the adversary system takes a bad situation and makes it worse, divorce mediation can take the same situation and make it "less bad" -- and often even better.
It's only natural that parents' first instinct is to head down the path of finding fault, laying blame, competing for the children, and jockeying for the best financial outcome. Unfortunately, the adversary court system only feeds on the shock, hurt and fear couples feel when they know that their marriage is coming apart.
We are not being loving and considerate when we stand back and let couples find their own way out of the morass of their marriage. We need to step up and persuade parents to avoid the adversary system. We know the damage it wreaks on families. We must convince them to take a step back and consider what's best for their children.
The premise of mediation is that the parents are partners in decision-making regarding their children in the weeks, months, and years following the divorce. Mediation does not deal with fault, find blame, give legal advice, or make decisions for others. In fact, ideally it begins by exploring the possibility that the couple can be reconciled.
We need to get across to divorcing couples what their children are in for if they take the adversary approach. The evidence is plentiful. Children are usually caught in the crossfire of their parents' marital battles, becoming the chief casualties of the divorce. Parents often use them to heal their own bruised egos, or they vie for the children's favor. The children are thus forced into a conflict of loyalties. More often than not the struggle wreaks havoc on their developing personalities.
The most devastating court battle is the custody proceeding. The judge, with his or her wide discretionary powers, becomes a referee between the warring parties. Experience has shown that the effects of court custody decisions do not so much terminate the dispute as give them a new form. The battle for custody becomes the battle for visitation rights.
The parent with custody feels the other parent's behavior harms the children. He or she wants to prevent the other parent from seeing the children altogether. The cycle begins again. Old wounds are reopened and the parents and children return to court before another judge with yet another unresolved issue.
The continuing bitterness may result in one legal battle after another. One of my clients described the process as death by a thousand cuts.
The parties may become so paralyzed by their continuing struggle that they are unable to begin building new lives. In essence, the adversary system has led the parents to become litigation junkies with their respective lawyers helping supply them with ammunition.
Divorce mediation, in contrast, helps parents and the legal system to treat children not as assets to be divided but as innocents who must be protected, in every way possible, from the fallout of a marital breakup. In a study I conducted some years ago, I interviewed 53 family lawyers following their involvement with a mediation service. The overwhelming majority of lawyers felt that the mediation service was valuable in that it:
1. Helps avoid unnecessary litigation.
2. Better prepares the parties to understand the issues.
3. Allows the client to use the legal services more appropriately.
4. Reduces the client's emotional turmoil.
5. Protects the children from being caught in the middle.
It's amazing how much better things go when parents agree on one central principle - that every decision will be based on the question: "What's best for our children?"
In a future article, I will be writing about how mediation can be used to create a shared parenting plan.
Howard H. Irving PhD. Professor, Family Mediator, Author, Children Come First: Mediation, Not Litigation When Marriage Ends.
DUNG!
I stayed married to an abusive creep because I knew he was capable of the worst. At least married I had some control of what the children experienced. Yes my biggest mistake was not having the bruises photographed when a witness called 911 after witnessing battery. After that he never left a mark. I absolutely believe he would have taken the children "into the Commonwealth" as he threatened. At that time, he would have gotten away with it.
There are all sorts of terrorists getting away with this sort of thing. I watch my BF's situation & he got more than most men 148 days. She put outrageous restrictions on him, asked they be changed when it benefits her, & does not comply with many others (not paying her 25% medical expense).. This system needs a uniform structure & some enforcement teeth. Evaluation starts the minute the divorce is filed & before the lawyers spend all the $$$.
There are plenty of parents out there whose children would be better off without them. Start looking at the ones pointing fingers...
I look forward to reading it !
Defining "shared parenting" varies as we have "States Rights" and with varying bills in each state as well as other countries. Generally, the concept of "shared parenting" is aimed towards decision making capability for the children. Currently, those with primary physical custody have the control in decision making. Shared parenting equalizes such.
Regarding the amount of time a child has with each parent, things vary. Shared Parenting is law in Australia and in research, they considered anything with 30% of time to each parent "shared." In other places, it puts forth a "Presumption" that parenting time should be as close to equal as possible.
I'm curious to understand your belief a mediator starting at 50/50 is flawed and biased. Some may consider that to mean they aren't biased. Would they be considered unbiased if they begin by saying one parent should automatically get custody unless they are an abuser and the other should get standard visitation? Like I said, I'm curious to understand your thinking. Thanks.
1. A parenting plan to fit with the factual/emotional/financial/practical situation of the divorcing family. The parenting plan can address the big issues (decision-making, schooling, health-care, etc.) and the small issues (how the toys/clothes get exchanged, who gets to call when, etc.) and the issues in between (transportation, bedtime, holiday treatment, etc.).
2. A placement schedule. The placement schedule should be presumed to be 50-50/equal. If there is no reason to depart from 50-50/equal, it should stay 50-50/equal. Reasons to depart are applied, when they actually exist.
Even when the divorcing parents can't agree on a placement schedule, a skilled mediator can help them develop and agreed-upon parenting plan. And that effort can build momentum (or decrease momentum, in a sense) that will reduce overall conflict in the divorce litigation itself.
The more issues the divorcing parents can agree upon for themselves, the better the divorce -- during and after -- will be for the affected children.
What is anyone doing about it? What states have put forth mandatory mediation prior to going to court and can the mediator testify as to which party was unreasonable if talks break down? What happens if you invite your spouse, multiple times over a period of 4 months to go to mediation and never have a note returned (already know that answer in my state)? What are legislators doing to put such "best practices" to use? What advocacy are therapists doing to get legislators to move? What are lawers doing to put forth such best practices, or would that lessen "billable hours?" As I said, So What?
It's a tremendous challenge, but making sure that mediators are trained well and honor best practices is a good place to start. Then familiarizing family court judges, ad litems, therapists, attorneys with what the true practice of good mediation is would be an excellent step. Then perhaps finding additional funding for well-trained, highly-skilled mediators to provide more community mediation services (rather than using any volunteer) and communication/parenting skills workshops would help.
Mandated mediation is fine in theory, but in practice it's problematic. Requiring more from those who put themselves out as mediators, increasing public awareness, educating divorce professionals, revamping the ills of collaborative divorce, and generally holding all professionals more accountable when taking money from people who are very, very vulnerable and have so much to lose is where we start.
That said, on this one I'm going to disagree with you (respectfully, of course).
There are times when government programs have been proven such a failure, that a tweaking is no longer best. What's necessary is a significant departure for past practices and a radically different approach. Given the results, its difficult to argue the practices of "family" court need only minor adjustment.
Of course, I'd not argue with some of the things you proposed and perhaps with your multiple comments about "a good place to start," "would help" and "where to start" means you also feel the need for radical departure from past practices.
I'm always interested in those taking a Novel Approach and if you were aware of any, please let me know as I'm collecting such. By definition, some will succeed, and some will fail but those attempting such are at least showing leadership. Leadership is a quality that is desperately needed in this arena.
"What to do when you walk into a Pre-Trial Conference and you soon to be Ex offers you every other weekend"
Given the gender statistics of those who recieve "Primary Physical Custody", I'd like authors here to go through the mental exercise of trying to figure out how to move someone off that position when they know that is what they'll receive if they go to court. Not sure such an article would be published here anyway.
I've said it before, this page seldom deals with the real issues of divorce.
I wish your kids the best of luck.
This is a true story.
There are as many unskilled, expensive, short-sighted mediators out there as there are bad professionals in any other field. Let's go deeper here, please. Let's discuss the fact that the field of mediation is just riddled with men and women who should not be hanging out a shingle, who do not honor best practices, who fatten their wallets after doing a lousy job.
I personally believe in a transformative approach by a mediator who's been trained up the wazoo. I've also trained attorneys and mental health professionals, and was disheartened by their inability to (oh here's the cliche) "paradigm shift" into mediator mindset.
Yes, yes, the adversarial system is not the answer, but neither is a flawed, untalented mediator. Let's work harder at sustained agreements, meaning let's move away from facilitative (even evaluative) mediations and push ourselves to do better, more transformative work.
My ex and I started with mediation. It seemed to be going fairly with an excellent mediation team (one man, one woman), but after making a list of items to sign-off on, my ex suddenly announced she wanted an attorney and terminated the mediation.
Two years of nasty litigation later, and each of us about $35 thousand dollars poorer, she signed a divorce decree for EXACTLY what we'd listed during the mediation session.
She got her lawyers and her day in court, and our daughter lost her college fund.
Maybe your mediator was not very good, but maybe he was and you just didn't want to hear it...
Divorce is a industry and some lawyers milk their clients with no regard to how they destroy the children in the process.
But the divorce system (still) is how it is for a reason.
Divorce is an industry.
Mediation is unprofitable for divorce lawyers. Acrimony and litigation is highly profitable.
Divorce litigation isn't about a sound and efficient dissolution of a marriage. Divorce litigation is a means of transferring wealth from the divorcing household to the divorce lawyers' household.
Divorce lawyers "sell" divorce litigation by various tactics.
In my case, my divorce lawyer waived mediation without my authorization and when I put together a comprehensive financial settlement at the start of the case told me "it is too early to settle".
Can you guess what my legal bills have been almost two years later, with the case still pending?
A case mediated/settled is a case that can't be billed further. A case that has been litigated to trial is a case that likely will have the parties/parents back in court with each other multiple times in the future. (My divorcing wife's attorney spoke of one of his client's who had been in court with him over 50 times.)
Require mediation; require bi-weekly meetings of the parties with the mediator until they resolve all of their issues in mediation.