What is private mediation?
As a childbirth educator and postpartum doula I tend to see couples during the most celebratory and joyful time in their lives. It’s a bit of a departure for me to be speaking about the topic of divorce, but in some ways it makes perfect sense. My personal experience has given me insight and awareness. Plus, by definition, my job is to help people transition into a new life phase. While marriage and birth are experienced as positive milestones in our lives, divorce is an unhappy one for most families. I’m not here to rain on your parade, especially those of you in the honeymoon of your marriages. I’m writing for those who are struggling with a separation or divorce and who have children caught in the storm’s wrath.
This is an ode to private mediation, particularly its positive impact on children. Over my ten years of being happily divorced and counseling families, I have referred at least a dozen couples to private mediation instead of traditional divorce lawyers. My snapshot pitch goes something like this:
Private Mediation is...
- Less expensive
- Less combative
- Legally binding
- Easier on the kids
Many couples have taken my advice, recognizing at the very least that mediation is going to be less expensive than going to court. Yet, still there are some who reject mediation and I can never understand why. So I asked Dr. Michelle Rozen, a seasoned and respected private mediator in the New York area, “Why don’t more couples choose mediation over the court system?
“I feel like people mistakenly think that if they mediate they won’t get legal advice,” she began. “I always encourage my clients to consult with an attorney for feedback during the process. But everything we do in mediation is made legally binding by a judge once we’ve come to a resolution.” In fact, typically judges are the biggest supporters of private mediation. They would much rather wrap-up a marital dispute when the couple has come in prepared and already sorted out their agreement in the presence of a mediator.
“Court tears people apart,” adds Andrea Hirshman, a veteran divorce mediator and attorney. “People sometimes resist mediation because they believe they will get their ‘day in court’—in other words, some kind of emotional justice.” However, this is not what happens in court. It’s not a TV show or dramatic film starring Meryl Streep. Litigation is not designed to be storytime or for you to achieve emotional satisfaction because “they” will see your side and rule accordingly. Court is the opposite of that; when lawyers start to make a case for their client, they are making a case against YOU. Andrea goes on to say that the process of coming to an agreement is kept “under control” via mediation; there is an attempt to keep it amicable, cordial and collaborative. This is about the exact opposite of what you can expect in litigation. Both mediators agree—divorce is a time of high conflict in your life.
There are typically an array of intense emotions surrounding a divorce. And when anger is combined with parenting, you stand a good chance of letting it bleed into your children’s lives, coloring their sense of self. Children are probably the best reason for parents to consider private mediation over lawyers and court. In the midst of a traditional divorce and custody battle it’s not uncommon for children to require cognitive therapy; they are sometimes depressed, anxious or angry themselves. That’s understandable, namely because our decisions and behavior will affect our kids. “It’s not separation or divorce that hurt children,” explains Andrea, “It’s conflict.”
Conflict. Studies show that when parents engage in mediation instead of battling in court, their children are positively impacted by their choice. They tend to have better self-esteem, stay focused academically, and learn a valuable life lesson in the process. From Brianna L. Nelson’s study of Divorce Mediation: “When children are involved in divorces, they can be at risk for emotional issues, especially when parents aren’t dealing with their emotions appropriately. The most common and complicated emotion during a divorce is anger in children and adults, which is a common reaction to grief and loss (Emery, 2004; Raisner, 2004). Consequently, if parents are not processing their emotions such as sadness, grief, or anger, it will negatively affect the children by causing more conflict and tension in the transition and children can become confused and upset about the divorce (Emery, 2004).” Children are hyper-aware of the tensions that ricochet between their parents, even if care is taken not to blatantly argue in their presence. When parents engage in mediation a more “collaborative” structure occurs. Collaboration is what mediators encourage and what propels you toward resolution. Counseling and therapy might be necessary too, just to help you separate with less residual anger, but mediation is the first step toward compromise. And yes, you have to compromise when you co-parent after divorce.
There are going to be birthday parties, graduations, and other milestones ahead of you. There could be adolescent issues to handle, a health crisis, even a diagnosed learning disability will force you to make decisions together as parents. I have personally witnessed parents at their adult children’s wedding sitting tight-lipped and tense at separate tables—even when both have new spouses. It’s not healthy for any parents to behave this way, yet old grudges die hard and typically it’s the kids who carry that weight for years, often into their own relationships. How parents handle a difficult circumstance in life sets an example for dealing with conflict in any challenging life-event. Children watch and learn and what will we show them? Fury and vindictiveness or conflict management and resolution? Let’s face it, most marriages do not end with a friendly handshake and a pat on the back, “Hey, sorry it didn’t work out, better luck next time.” Divorce is generally a crisis, but it needn’t turn into a traumatic crisis. How that unfolds is entirely in your hands.