You would be hard pressed to find a family lawyer in the State of New Jersey who is opposed to mediation. Over the past decade, with the pressure of the over-docketed court system as well as divorcing couples (or other parties in conflict) who would rather keep their money instead of giving it to attorneys, mediation has become a household term. Twenty five years ago, when I first started practicing mediation, most people added a “t” and thought that I do, ummm, “mediTation.” Others thought (and some still do) that I practice arbitration and have really no idea what the difference is.
A brief description of mediation, with a focus on family and divorce mediation in this article, seems worthy for my third “Mediation Matters” column.
Divorce mediation is a family-centered process guided by a neutral third party who helps divorcing couples work through the issues and decisions of a divorce within a collaborative framework. Instead of focusing on adversity and winning, mediation focuses on mutual problem solving and the best interests of the entire family. Mediation challenges the methods and assumptions of the adversarial divorce process. It helps to dissolve a marriage by focusing on the future, not by getting stuck casting blame for the past. While understanding the law is necessary and important, understanding the interests and needs of all family members is also prioritized as the mediator assists the couple to engage in a constructive conversation towards maximizing informed decision-making.
In a safe, informal and confidential environment, a mediator helps parties communicate and prioritize their needs and goals. One of the most difficult aspects for divorcing couples is the experience of disempowerment and frustration with the divorce process of which they have little understanding and control. In mediation, the parties retain control of the decisions that relate to their own lives and to the lives of their children. Mediators never make decisions. The most intimate details of one’s future life are not left in the hands of strangers, be it a judge or lawyers battling out strategic positions. Rather, the mediator empowers the couple through the process, facilitating their negotiation towards their own informed and fair agreement, on their own terms, with their own values and priorities at the forefront.
In mediation, parties work out all the legal issues necessary to finalize their separation or divorce, from parenting (custody and visitation) and support to property division and tax implications, in a faster and less costly process. Mediation does not represent a substitute to the law, but to the legal process. In a proper mediation, parties should be fully informed about the law to ensure that they are each making informed decisions. But the benefits of mediation do not stop there. Informed of, but unrestricted by the narrow parameters imposed by the law, mediating parties can use the flexibility of the process to forge a creative agreement, tailored to the unique circumstances and needs of their own family. Not surprisingly, research has shown that compliance and satisfaction with mediated agreements is higher than decisions imposed upon divorcing couples by a third party, i.e. a judge.
In contrast to the conventional adversarial divorce, mediation views divorce as an ongoing emotional and family problem, not just a one-time legal event. Divorce represents the dissolution of only one relationship, that of husband and wife. It does not and should not rupture the entire family. In mediation, divorcing parents are invited to develop the necessary skills for successful co-parenting required by their new family status.
As hostile as a couple may feel towards each other, with the help of the mediator, spouses learn to separate the issues and the negative energy they have between them and focus their attention on the truly important matters—their children and the decisions that have to be made for the future. The mediator acts as a guide, helping couples to restructure their family—not dissolve it. Even when there are no children, more and more couples are turning to mediation to help them feel better about ending the relationship, or to use their words “to do it the right way, parting as friends—as much as possible” or, more recently framed by another divorcing Hollywood star, “conscious uncoupling.” In addition to the actual terms of the divorce settlement, a little known secret of the divorce mediation process is that although mediation is not therapy, mediation does offer divorcing couples a form of healing to help each individual transition to his or her independent future.
Even with all the reasons and values highlighted here which motivate couples to come to mediation, we should not presume that mediation is geared only for couples who trust each other and who come in with agreement, walking in arm-and-arm. While such couples are certainly welcome in mediation, mediation is not a pollyannaish or naive process based just on ideals of peace, love and harmony. It is a very concrete and nuts and bolts process in which all decisions that have to be made for a divorce to be complete, do get made. Tough decisions often have to be made. Finances and time with children are limited and there must be give and take. But when decisions are made at the table together, instead of through lawyers’ proposal letters or in the courtroom where adversarial posturing is the norm, there will be more opportunities to reach the best possible outcomes for all family members.
Is mediation right for everyone? Certainly not. Each and every conflict and each and every relationship needs to be assessed to find the process that is right for them. But for most, mediation is and should be the first stop to shop for couples who have decided, or are seriously considering divorce. Our families deserves the best shot at the best process.
By Adam J. Berner, Esq., MA
Adam Berner specializes in mediation and collaborative family law, is the founder of the Berner Law & Mediation Group, with offices in Manhattan and Hackensack. As a pioneer in the matrimonial dispute resolution field for the past 25 years, he has served as President of the Family and Divorce Mediation Council of NY, Founding President of the NJ Collaborative Law Group and founding member of the NY Association of Collaborative Practitioners. In addition to his private practice, Adam serves as a consultant for the Beth Din of America, is a certified mediation trainer, an adjunct professor at YU’s Cardozo School of Law where he teaches mediation and collaborative law and, on occasion, teaches conflict management for rabbis at RIETS. Additional information can be found on
www.MediationOffices.com.
