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Bar News - January 18, 2008


Finding “The Place of Contentment”
The Role of Mediation in Divorce


By:

 


James V. Ferro, Jr.

The very word “divorce” conjures up many unsettling feelings for those who find themselves either faced with a divorce or in the midst of one.  The divorce process creates numerous issues that people must resolve under circumstances often riddled with conflict, uncertainty, and distrust.  Divorcing spouses often believe that the conflict between them is so great that any attempt to resolve that conflict short of litigation will be futile.  Increased conflict, however, merely increases the challenges to solving problems; it does not mean that a case is necessarily headed into a nasty and expensive courtroom battle. 

           

While many people want to quickly move through the divorce process in the hope of escaping the frustration and anxiety that divorce issues often raise, to avoid further conflict after the divorce, it is important that the parties have a full understanding of the issues and the methods of resolving their disputes. This article will explore one such method they may choose to resolve conflict in a divorce: mediation.

 

Mediation often a wise choice

Mediation has become widely regarded as an effective alternative in resolving the issues presented by divorce.  Mediation allows the parties to become directly involved in the outcome of their case.  Mediation seeks to empower the individuals and to place more control with the parties, rather than with the court.  While neither party may obtain each and every item on his/her wish list through mediation, the benefit of knowing what is agreed upon and having a direct say may outweigh the risks of proceeding with litigation.          

           

I call this “The Place of Contentment.” Reaching The Place of Contentment through mediation may take different forms depending upon the issues in the case, the level of acrimony between the parties, and the role of the mediator.  An understanding of the mediator’s role will help define a party’s expectations when considering mediation.

 

The role of the mediator

Generally, a mediator serves to facilitate discussion between the two parties.  A mediator does not decide an outcome.  A mediator does not tell a party what to do. A mediator is not a judge.  A mediator does not advise a party whether a particular proposal or solution is in the party’s best interest.  A mediator is neutral and unbiased.  A mediator allows parties to raise issues and to explore settlement possibilities in a forum that is designed to solve problems.

           

Parties entering into marital mediation should expect that a mediator will:

 

  1. Manage the mediation process.
  2. Promote cooperative behavior.
  3. Understand the conflict.
  4. Maintain impartiality.
  5. Demonstrate listening skills and a non-judgmental attitude1

                  

People considering marital mediation should understand some basic ground rules that in my experience as a marital mediator, I have found critical to achieving a mediated agreement and to reaching The Place of Contentment:

 

  1. Resolution of an issue takes time.
  2. Active problem solving requires active listening.
  3. Full disclosure of financial and other information is critical.

4.  Knowledge of divorce law reduces unequal bargaining power.

5.  You can agree despite disagreement.

             

Resolution of an issue takes time and patience

When a mediator suggests that the process may take hours or multiple mediation sessions to complete, many participants seem surprised to hear this.  If a party enters mediation believing that all of the issues will resolve in an hour or two, he/she may be disappointed to learn that very few cases result in worthwhile agreements in this time frame.  Many participants enter mediation with a set of boundaries and an unwillingness to move outside those boundaries.  Substantial time may be needed to explore those boundaries in an effort to generate movement between the parties. 

 

When two people are embroiled in a high conflict, significant time and patience is required for this movement to occur.  The parties need time to explain their positions and time to consider solutions.  A party who feels rushed through the mediation process may be reluctant to enter into agreements with the opposing party.  The mediation process, in its best form, establishes a forum where people can consider, in a thoughtful way, options or solutions that may be outside their boundaries.  This takes time.   

 

Active problem solving requires active listening

A party will not be able to solve a problem if he/she will not listen to the basis of the problem.  While people will often disagree about the causes of a problem, listening to how that problem arose or why it exists, may provide valuable insight into possible solutions.  While it may appear counterintuitive to listen to the spouse whom you may no longer trust or respect, workable solutions are often contained in the explanation of a problem. 

           

An effective mediator will be able to assist the parties in identifying possible solutions contained in the rhetoric of a heated argument.  A marital mediator can help filter the emotions in order to help people understand and locate viable solutions. 

 

Full disclosure of financial and other information is critical

Participants should have a full and complete understanding of the financial or other issues affecting the case.  Without this, neither party may be equipped to consider solutions out of fear that he/she is missing something. 

           

Depending upon the particular issues involved in a case, parties should be prepared to enter mediation with or be prepared to disclose during mediation any of the following:  financial statements and records; bank and credit card statements; check registers; expense records; property and/or business documents and valuations; employment income; health and life insurance benefits; retirement statements; parenting concerns.

Knowledge of the law reduces unequal bargaining power

           

Divorcing parties may participate in mediation with or without a lawyer.  Regardless of which path a person chooses, however, he/she should have an understanding of his/her rights and obligations under the law.  If equipped with this knowledge, the parties may be able to negotiate a resolution to the issue or the case with greater ease and confidence.  Even if a party proceeds to mediation without a lawyer, that individual should be prepared for the possibility that a mediator may recommend that he/she consult with a lawyer, accountant, counselor or other advisor about a particular issue or matter.  If participants don’t have the appropriate foundation for the laws associated with divorce, they may enter mediation feeling vulnerable and may be less likely or less willing to agree with each other. 

 

You can agree despite disagreement

Conflict and disagreement are not usually synonymous with peace and resolution.  Every problem, however, has a solution.  To reach a solution, a party must be prepared to compromise.  Inevitably, either party may feel as if the compromising is one-sided.  When both parties express this sentiment, it may be an indication that the mediation process is working and both parties are moving closer to a resolution; moving closer to The Place of Contentment.  Bear in mind that The Place of Contentment is not a place where either side is waving the victory flag to the other side’s chagrin.  If both parties feel that they have compromised and moved a little bit further toward the other than they thought they would, then the process may have worked well. 

           

Reaching The Place of Contentment will provide the parties with closure to the conflict and the comfort of knowing they have had a part in the terms of an agreement.  They can then move away from the conflict and away from the disagreements that brought them into mediation.

 

Conclusion

Mediation of a divorce case is not an exact science.  The process takes on many different forms, depending upon the issues in the case, the parties involved and their counsel.  Regardless of those differences, however, reaching a mediated agreement is likely to decrease the acrimony between the parties, reduce potential litigation costs, and provide parties with a direct say in the outcome of their case.  In this regard, mediation is a practical alternative to consider when faced with a divorce, either as a party or as counsel to a party in a divorce. 

           

Appreciation and acceptance of the above ground rules will make the mediation process more effective and will allow participants to reach The Place of Contentment more easily and more confidently.  

James V. Ferro, Jr. is a member in the Manchester law firm of Wiggin & Nourie, P.A.; he concentrates his practice in domestic relations and mediation. If you have a question about mediation, you may contact him at 629-4761.

1MacKnight, Marilyn S. MA and Erickson, Stephen K., J.D. Mediating Divorce, A Step-by-Step Manual, p. 16.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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