Finding Middle Ground:

Mediation Allows Divorcing Couples to Reduce Conflict

Rarely can the dissolution of a marriage be called easy. Aside from the legal procedures that must be followed, divorce can bring about a host of issues with which a couple must cope. Hurt feelings, disputes over money or property, grief over the loss of a once-happy relationship and apprehension about adjusting to life as a singleton can all pose challenges for soon-to-be ex-spouses.

But when children are involved, the process can become even more difficult, with youngsters unwittingly placed in the middle of their parents’ personal conflicts, sometimes even being used as pawns in one parent’s quest to punish or get back at the other.

Enduring the emotional strain of a protracted legal battle and being sandwiched between at-odds parents can have long-term negative effects on a child’s psychological well-being, a reason for which many divorcing couples are now turning to litigation alternatives such as mediation or collaboration.

“The most important thing (in a divorce) is to have a reduction in conflict so that kids don’t feel caught in the middle,” said Claudia Arthrell, ACSW, LCSW, director of professional services at Family & Children’s Services in Tulsa. Parental strife can have a profound impact on a child’s emotional health and the way he or she handles relationships and the challenges of everyday life.

Both mediation and collaboration offer couples a way to reduce such conflict and dissolve their marriages amicably and fairly, while avoiding the contentiousness and time-consuming nature of a divorce handled in the courtroom.

Both also offer the added benefit of reduced cost. In Oklahoma, with various legal fees and court costs, the price of a litigated divorce might run as high as $30,000, while one reached through an alternative method, such as collaboration, would fall somewhere in the $4,000 to $10,000 range.

What is Mediation?

Mediation, as defined by the American Bar Association’s Model Standards of Practice for Family and Divorce Mediation, is a voluntary process in which an impartial third party — often a specially trained attorney or licensed therapist — facilitates the resolution of family disputes. The mediator helps couples work out the financial, property, visitation and custody-related details of their divorce by offering guidance and strategies for coming to a mutual agreement.

A mediator cannot give out individual legal advice or make decisions for the couple. For individual counsel, couples involved in mediation must hire private attorneys.

For mediation to work, couples must agree to work together in a non-confrontational environment with one common goal: to reach a compromise. Parties involved in mediation must also agree to fully disclose all pertinent financial information during the proceedings.

Some pluses of mediation are that it is confidential, impartial (neither party is shown favoritism or permitted to one-up the other) and voluntary, meaning either person can withdraw at any time. Unless the mediation is court-ordered, couples may take as long as they like to work out an agreement.

Once an agreement has been reached, a mediator puts it in writing for the couple. After the agreement is out in writing, both spouses go over the document with their attorneys to make sure everything is correct.
Couples in the midst of splitting up may think duking out their differences in a courtroom is the only way to get a divorce.

The prospect of working with one another and coming to mutually beneficial terms in a non-adversarial environment might seem daunting, given the many emotional, financial and child-rearing issues that are at hand. Fear of losing custody of the children or being short-changed in some way by the ex-spouse leads some people to hire an aggressive attorney whose main purpose is to ensure victory for his or her client, not necessarily a settlement that is fair to everyone.

What is Collaboration?

In a process such as collaboration, couples and their attorneys are able to achieve an outcome that benefits both spouses but in an environment that’s more cooperative and without the courtroom sparring and acrimony.

“Couples need permission to deal with one another and put the conflict aside,” said Barbara Bartlett, a Tulsa attorney specializing in family law and collaboration. In a traditionally litigated divorce, feelings of anger and resentment toward an ex-husband or wife can lead one spouse and his or her attorney to engage in legal tactics designed to inflict punishment on the other.

“(In that case) both sides are feeling wounded and, once one person is bitten, they want to bite back,” Bartlett said.

But in the collaborative process, instead of using strong-arm tactics to solve areas of disagreement or sway the proceedings in one person’s favor, an attorney might address his or her client’s specific needs and concerns by making a statement such as, “My client needs help in these areas, how can we make this work? ” Bartlett said. The key is for both sides to come to an agreement without resorting to the partisanship and arguing that often takes place in a litigated divorce.

At the start of the collaborative process, both attorneys sign a contract known as a participation agreement, in which both state they and their clients are committed to reaching a settlement and that neither side will take the divorce to court.

Should the collaborative process break down, then both attorneys must withdraw from the case and their clients must find other legal representatives to assist them in courtroom divorce proceedings.

Couples and their attorneys then attend a series of four-way meetings in which they establish ground rules for the conduct of the meetings, identify goals and interests, disclose all pertinent information, set agendas for future meetings and go over any necessary documents.

In the collaborative process, a financial specialist is often used to help couples sort out money matters and issues such as taxes and spousal support. A mental health coach also can be part of the collaborative team, helping both spouses iron out any emotional kinks that might hinder the divorce.

“The mental health coach helps both parties process their emotions and work together so they come to the same place,” Arthrell said.

In collaborative cases, parents may also work with a child specialist, whose job is to serve as advocates for the couple’s children and help the parents understand child-development issues in relation to the divorce, according to Stuart Webb and Ronald Ousky, authors of “The Collaborative Way to Divorce” (Hudson Street Press, $23.95).

In conversations with the couple’s children, a child specialist, who remains neutral throughout the process, is able to make recommendations to a couple, as well as help them coordinate a parenting plan that works for everyone involved, the authors said.

Finding Common Ground

For Tulsan Whitney Price, collaboration helped eliminate some of the stress that might have otherwise clouded the divorce process. When Price and her ex-husband decided to end their marriage, their main concern was how the break-up would affect their two teenage sons.

Collaboration seemed the best way to meet their needs because neither wanted to endure the emotional or financial strain of a litigated divorce, Price said.

“We chose not to complicate it with a lot of drama — our goal was to help the kids be as unscathed as possible from the divorce,” she said.
“It was more important to us to be fair than for either of us to come out ahead of the other or to win.

We’re always going to be co-parents and have a relationship because of our kids. We knew that we had to be respecting of the relationship we’re going to have from here on out.”

Together with their attorneys, Price and her ex-husband attended several four-way meetings in which they jointly went over personal, financial and custody matters. The goals they aimed to accomplish were to protect their children as much as possible from any negative effects of the divorce, divide their property in a manner that was agreeable to both, and maintain legacy assets (property passed down on one side of the family) for their children. Collaboration helped them to achieve those goals with a minimum of fuss.

“Our attorneys were really in the role of guidance counselors,” Price said. “They helped us to look at things in a logical way – there really wasn’t any element of them having to be referees for us.”

When couples divorce, their children often end up in the middle of the fray and can suffer the consequences of their parents’ personal disputes. Minimizing conflict and negativity is important in helping children get through the divorce process and maintain their emotional well-being, according to Family & Children’s Services’ Claudia Arthrell, ACSW, LCSW. Here are some tips from Family & Children’s Services on how adults can help children cope with the situation:

What to tell your child about the divorce:

• It’s not your fault.
• It’s not up to you to get us back together.
• Marriages may end, but families continue.
• You can’t control the divorce, but you can control how it affects you.
• It’s normal to feel angry, sad, lonely and numb about what is happening.
• It’s not your job to help us feel better. When you’re worried, talk to us or ask to speak to a counselor.
• It’s OK to love both of your parents and not take sides.
• Some parents have a hard time with divorce. It’s not because you aren’t lovable.
• Let us know how you feel, but understand it may not change what we do.

5 Parenting Pitfalls to Avoid:

1. The “Disneyland Dad or Mom” syndrome. Compressing a batch of fun activities or buying the latest toys will leave little time for real closeness or any meaningful discussion with your child.
2. Letting everyone “do your own thing.” Without structure or some kind of organization or plan, visitation is reduced to a meaningless ritualistic exercise.
3. Inconsistent habits – how often a child sees a non-custodial parent is a key factor in how long it takes to heal from the trauma of divorce.
4. Doing what the kids want without considering the needs or wants of the parent. If you give to your child out of guilt or fear, this can be very damaging and confusing. Set boundaries out of love.
5. Doing what the parent wants without considering the needs or wants of the child. Your time together is priceless and should not be squandered. Denying the needs of your child denies the worth of the child.

Guidelines for Time Sharing:

• Be courteous and have children ready on time, transferred on time and call as soon as you know plans must be changed.
• Avoid using pick-up and drop-off times to engage in any type of conflict or to discuss any form of business.
• Deny the temptation to use your child as a messenger.
• Don’t ask your children about what is going on in your co-parent’s (ex-spouse’s) life.
• Take care in how you speak about the other parent to children.
• Don’t allow family or girl/boyfriends to make negative comments about the child’s other parent.
• Make sure your child feels fully connected to your life.
• Assign children responsibilities in your household while they are visiting.
• Occasionally say something positive about the other parent.
• Help your child purchase birthday and Mother’s or Father’s Day presents just as if you were living under the same roof.
• Establish spending limits so there are not great disparities in the costs of gifts.
• Make it possible for your child to have a photo of the other parent in their room at your house.
• Set aside some time to be alone with each child.
• While it is better for children to have some consistency in routines, accept that there are limits to your control when they are with the other parent.
• When your child is away, nurture yourself and get your adult needs met so that you can be a more effective parent.
• When your child is visiting you, it is for you and your child alone. Make it special.

Learn More on the Web

• Families in Transition provides information on divorce procedures in the Tulsa County District Court system, as well as alternative dispute resolution, and aims to help families minimize conflict and protect the well-being of children involved in divorce. For more information, including a list of mediators and family law attorneys in the Tulsa area, visit familiesintransition.com.
• For more information on the collaborative process and a list of collaborative attorneys and professionals in the Tulsa area, visit the International Academy of Collaborative Professionals site at collaborativepractice.com.
• Family and Children’s Services offers an array of programs designed to help families deal with issues and challenges brought about by a divorce, including the court-mandated Helping Children Cope with Divorce seminar, which educates divorcing parents on how to set aside their personal differences and focus on the needs of their children. For information about these programs, visit fcsok.org/classes.