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.