FamilyCraft: The Private Practice of Family & Divorce Mediation

Wednesday, May 30, 2007

Divorce, Mediation and Fairness: A Potential Client's Inquiry

family mediation: fairness in divorce
A potential client (we'll call her Ms. Smith) asked an important question this morning:


"My husband has just told me that he is seeking a divorce. We plan to use mediation if possible. I have concerns about whether mediation addresses fairness?"

My reply follows:

Ms. Smith:

Thank you for your very important question about the divorce process, mediation and fairness! In my view, divorce — no matter how you do it, or what process you use — poses many potential concerns and issues of fairness for both sides.

I would guess we all agree that "fairness" is elusive, though, and your sense of fairness and your husband's (and yes, even the judge's) all might differ. And this, of course, is what makes conflict resolution (in or out of the courts) so challenging.

As a professional divorce and family mediator, I have always focused my efforts to meet two principal process concerns:

  • First, within the limitations of reasonable time and cost, I strive to ensure that both parties are as highly informed and educated as to their options (child custody and parenting, financial, legal, tax planning) as possible. For, only if divorcing or separating parties are informed, can they truly assess their choices and their divorce agreement's fairness from any perspective.


  • Second, I bring all my experience and talents to guiding the parties' approach (what they have decided is "fair"), and crafting its description, in ways that their agreement finds support from those reviewing it (perhaps a friend, a lawyer or other professional or advisor, and certainly the judge or magistrate as a final Court Order is sought).
As a mediator, it is, of course, easy to listen and reflect back parties' discussions without noting potential practical concerns or legal issues. I have found, however, that most clients appreciate a bit of education regarding likely "red flags". Most informed clients understand the folly of spending money for negotiating a mediated agreement and for its drafting, if its approach is to be ultimately rejected as unworkable or unconscionable by the reviewing magistrate or judge.

This does not foreclose clients from opting to employ a creative and unusual approach for their family, and even risk the court's rejection of their novel plan. Good mediators, I think, are happy to assist clients realize a unique vision, an agreement quite different from the often cookie-cutter approaches of "most" divorces and many on-line divorce form factories. To successfully secure the court's blessing may require some careful explanation, but that is the art of skilled drafting.

In short, in my view, mediation that allows parties to find their own solutions after full disclosure and education about 1) options and choices, 2) what the experience of other divorced folks have found often works best for their children and for their managing finances after a divorce, and 3) with an appreciation of (not abdication to) how judges and lawyers think — substantially enhances the likelihood of both parties' finding fairness in divorce's shadow.

But do I understand why you ask the question? Absolutely.

My experience as a former matrimonial attorney and now divorce and family mediator teaches me that fear and loss of control are the predominant emotions of divorcing or separating folks as they begin to look at the process of divorce or separation. (In part, I believe that explains an often understandable urge to seek out the most "aggressive" — sometimes meaning the most exploitative and destructive — choice of lawyers as a divorce begins. Later, many parties will regret this instinctive self-protective reaction to their initial fears — as hostility increases and fees mount up, communication ceases and estrangement emerges, and ironically, control diminishes.)

Ultimately, the great thing about the mediation process, Ms. Smith, is that if you don't feel like the process works for you and allows you to find fairness in your divorce, you are absolutely free to leave it! (You would then return to the ordinary contested approach to divorce.) Your work in mediation remains confidential and protected by Colorado law, your ideas and discussions can't be used against you, and you have not advanced a substantial deposit for litigation costs or legal fees (an attorney's "retainer"). Instead, you have only paid for the mediators' limited time in your exploring this alternative divorce process, with its large potential "upside." And, nothing prevents you from consulting with and using professionals (lawyers, accountants, realtors, child therapists) if you find you need that support to find fairness in your divorce agreement and mediation!

In short, managed with experience and skill, the mediation process promotes, not detracts from, the likelihood of married partners finding fairness and satisfaction in the difficult task of divorce.

Sunday, April 23, 2006

Empathy, Anger & Sorrow (Erasing the Lines in the Sand)

family mediation: empathy, anger & sorrow erasing lines in the sandIn discussing disappointment's natural place in the landscape of life, psychotherapist Michael Miller, Ph.D., recently wrote in a popular magazine's feature article:


Empathy helps turn anger into sorrow. When sorrow becomes mutual, it begins to erase the lines drawn in the sand.

I recognize this as a common phenomenon in divorce and family mediation.

A divorcing couple struggles mightily with their difference of views and their anger with each other in the mediation session is pervasive. At some point, however, one of the parties' anger shifts to tears, and for a moment, there is real empathy for the other's interests. There is a palpable softening of tone and suddenly, impasse is overcome.

Empathy for a spouse or co-parent is seldom achieved in the cold exchanges of a lawyer's communiques advocating his or her client's positions in a divorce or family law case. With many couples, however, I've often watched the intimacy of mediation capitalize on Dr. Miller's observed dynamic, with a positive resolution ultimately resulting.

Sunday, December 04, 2005

Acclaim for Our Divorce Law & Mediation Blogs and Website

Fellow attorney-mediator Diane Levin of Boston has kindly reviewed our new blogs (this family mediation blog, and our companion Colorado DivorcePoint! divorce law blog). In noting our blogs' launch, Diane's visible and respected On-Line Guide to Mediation (an alternative dispute resolution blog) described our main Colorado divorce mediation website as
one of the most comprehensive, easily accessible, and visually pleasing sites I have encountered. Divorce and family mediators in search of ideas for enhancing their own web presence should plan to stop by.

We'll work to live up to such praise!

Monday, October 31, 2005

Good Fences In Co-Parenting Plan Mediation

Good Fences: implications for family and co-parenting mediationIn his epic poem about a Vermont apple orchard, “The Mending Wall”, Robert Frost puzzled over the timeless proverb



Good fences make good neighbors.

After a five year relationship, my clients, John and Mary (not their real names, of course), had a son. Two years passed since they separated (they had never married) and they came to mediation because co-parenting struggles persisted. As shift workers, they had quite changing work schedules and it seemed difficult to easily arrive at any parenting time schedule. But I was interested: they had no court orders of any kind (none re child support, none re decisionmaking, none re timesharing).

After exploring the topic more with them, I learned that their conflict was ordinary in the sense it derived from fierce issues about power and control. What was extraordinary was their fear of organizing and committing to any court-ordered plan on any of these issues. Why?

I learned that John and Mary had so long fought parenting battles over their son by threats (“if you don’t agree to this, I will just do the following ...”), they found the prospect of losing that conflict management style scary. If nothing else, their past pattern of managing conflict by opposing threats was familiar. After all, they had a long history of how to manipulate, cajole, and ultimately arrive at some accommodation.

After looking at this dynamic, John and Mary — with some trepidation — concluded this approach was becoming increasingly unworkable. Both understood that defining boundaries in parenting (as with all relationships) takes some measure of courage, since it limits one’s options as well as assures one’s rights. In our work together in mediation, John and Mary came to acknowledge that the benefits would outweigh the costs — in making some basic agreements and having the court enter orders compelling their observance (absent their mutual consent to deviate from those orders). It was a case where Frost’s proverb seemed all too true; John and Mary's relief in negotiating a written parenting plan for formal court order was palpable.

I am fond of saying in mediation: “There is no Divorce Agreement Police Force.” By this I mean that no one will interfere with divorced or separated couples/parents negotiating on-the-fly changes to their official court orders. I persistently remind my clients that those orders never limit the flexibility of cooperating parents. At the same time, establishing a formal plan and sometimes obtaining court orders often offers significant relief to parties exhausted from constantly skirmishing over those boundaries. Such was the case with John and Mary.

Friday, November 19, 2004

High Conflict the Norm in Private Practice Couples?

It's an all too common misperception that family mediators toil day in and day out with persistently conflicted couples. Of course, we see many, many of these and they create great challenges for us as conflict resolution professionals.

In my experience of 12 years of private practice family mediation, however, this dynamic is more often the exception than the rule, for couples who self-refer to mediation and choose to mediate without attorneys present. Most of these couples may exhibit the anger, anxiety and pettiness of high conflict couples at times during their work together. But commonly, the art and craft of private family mediators is decidedly more focused on creativity in problem solving and expansive imagining, than it is on managing crazy-making.

Tuesday, November 16, 2004

Sorcery, Family Mediation & Picasso

I'm fond of that great quote from Picasso:
You can't be a sorcerer every day!

the fresh air couple
Yesterday afternoon, I had one of those couples that have such a positive regard for each other -- it's simply inspiring to be in their presence.

the struggling couple
In contrast, in the morning, I worked with a couple who - three and a half years earlier had left mediation because of their persistent struggles over control and trust. Sadly, they were in the same dynamic and they immediately questioned "the other's sufficient commitment to the process," and spoke of beginning a serious divorce war with lawyers. We talked about how much more delay that might entail.

I suggested that they owed themselves and their children (and new significant others!) resolution and closure of their divorce dance. They agreed to put down nearly nonrefundable deposits for two more sessions (we agreed in writing to an oppressive cancellation policy!), so that they might commit to the work and move forward.

Earlier in our work together, the wife stormed out of mediation, after a zinger from her husband. I knew from my experience NOT to go after her. They simply weren't yet ready for moving on; the allure of conflict held too much meaning at that point. I'm STILL uncertain whether "the time has come, the Walrus said."

I urged them to consider Jeffrey Wittmann's wonderful book "Custody Chaos, Personal Peace: Sharing Custody with an Ex Who Drives You Crazy." (It's all about what YOU can do, urges Wittmann, in an entreaty to self-empowerment by forgetting silly notions of changing your spouse.)

No sorcery yesterday, but I tried something different: a process approach (commitment by fee advances) that might just move this couple onward.

Monday, November 15, 2004

Why This Blog?

I'm fortunate to work full-time as a divorce and family mediator in private practice.

Many mediators and aspiring mediators ask me: "What's the full-time practice of family mediation like?"

There's precious little written about this work. There's an amazing chapter by Patrick Phear (a former zoologist from Zimbabwe with a thriving Boston family mediation practice) in the anthology When Talk Works: Profiles of Mediators (Jossey-Bass, 1994). Titled "Control, Commitment and Minor Miracles in Family and Divorce Mediation," this gem inspired me when I left forever the practice of law to be a mediator.

Look, I can do two mediations a day, each of about two hours. And that requires that I spend half an hour beforehand reading my notes, two hours with them, and probably an hour after for doing my notes. That's close to seven hours a day right there with almost no other human contact, just very clinical, very buttoned-down, very, very, hard work. Really, it's hard work to mediate, to listen to the subtleties and nuances of what people are saying, to hear all the emotional pieces. It's difficult, tiring and painful.

And so, this blog.

I hope to occasionally share the joys of this work - I call it "familycraft" - and reveal its challenges. I hope to consider in these musings both the intrapersonal world (how it is personally, spiritually, and psychologically) and the professional/technical world of being a family mediator.