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.