Below is the link to a detailed radio interview I gave to Divorce Source Radio. It addresses my views about divorce mediation, the role of the mediator and the role of the law in the process of divorce.
If it feels relevant to you, please feel free to listen or pass along.
http://www.divorcesourceradio.com/be-smart-about-mediation/
Best,
MediateTrix
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Please check out my article on Start Over Smart’s website about custody, visitation and the impact those words have on how parenting is decided in the context of divorce.
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Recently, NYC hosted its first divorce expo, Start Over Smart NY: A Modern Divorce Expo.
The Expo became a media darling, with many major news outlets covering the event, (HuffPo was a media sponsor). I even spotted Tokyo TV and Russian News Network. The broad based media interest caused me to wonder why was having an Expo devoted to divorced and divorcing folks so interesting to the media?
For the purposes of full disclosure, I (a.k.a The MediateTrix) was on the advisory board of the event, a speaker at the event and my professional practice, Stalder Raich Mediation, had a booth at the Expo. I got involved because I believe in the importance of helping people gather information and wisdom as they make the transition from being married to divorced.
There are different lenses through which one can think about family, conflict and the law. For example, I believe that divorce is a family matter with a legal element, not a lawsuit that happens to be about a family. Others view divorce differently.
There is a deficit of quality information about different methods of divorcing.
The media often teaches us to be positional, political discourse feeds into that model, celebrity divorces teach us that high conflict is a paradigm to which we should aspire. And social media encourages exceedingly brief remarks about complex ideas. Tarty replies, sound bites and ‘quotables’ are media savvy, but complex problems rarely get solved by idioms.
The organizers of Start Over Smart seemed to recognize the complexity and multi- faceted nature of separation and divorce and that is why I chose to support and participate in the event.
The founders of the event, a mother daughter team, Francine Baras and Nicole Feuer, feel strongly that people going through the challenges of divorce need a community, need professional advice, and need to know that life can be fun and flirty again when all of the business of divorcing is complete. To that end, the Expo had a two fold message; conduct the business of your divorce in a thoughtful, smart manner and remember there is the potential for a full, fun and vital life on the ‘other side’.
The media enjoyed reporting on this unique concept, but the question remains, why was there so much interest?
There are events to attract people going through other life transitions like marriage, or expos for people contemplating purchasing a new business or looking to decorate their homes or wanting to engage in hobbies etc…yet, there have been few to none that address one of the most thorough and common lifestyle changes in America, divorce.
Start Over Smart was divorce’s debutante ball; it’s coming out party. Divorce is something that many, many people have to go through but there are not many forums to discuss it openly with others going through the same thing.
Hopefully events like Start Over Smart can help teach the public that there are different ways to get divorced (mediation, collaborative divorce, litigation) and, if possible, one should be thoughtful about how one goes about divorcing to ensure the outcome is in harmony with one’s goals and intentions for the process.
Also, one would hope that attending an event that supports intelligent divorce decision- making does not induce feelings fraught with shame or insecurity, but rather fills attendees with feelings of self-empowerment and self-determination.
Start Over Smart and the press coverage it received should serve as a catalyst to alter the way we think about and talk about divorce in America. And we really need that shift as a nation.
Many other countries have refocused divorcing couples toward non-adversarial divorce solutions. England requires mediation prior to engagement in matrimonial litigation and in Canada divorce mediation is a common first step, not an ‘alternative’ one.
Why then, is America so set on creating an adversarial environment for resolving divorce? Isn’t it time for divorce to be viewed as the restructuring of a family (physically, emotionally and financially) rather than the shameful failure of a family to succeed?
Justice Brandeis famously wrote about sunlight being the best disinfectant. The message I took away from Start Over Smart is that people going through separation and divorce deserve to be ushered out of the closet and into the light.
I also came away from the event thinking that if feelings of shame and failure that divorce tends to evoke can be replaced with feelings of pride and accomplishment about how one handled one of the biggest, most drastic life changes in their adult life, then Start Over Smart was the beginning of a really important shift in divorce’s story in America.
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Check out my article on Forbes.com; which is based on the following text:
Dear Seal and Heidi, Usher, Kelsey, J-Lo, Debra Messing, et al…
It isn’t fair for people to be prying into your private lives, but, by choice or not, you are role models and that seems to be one of the many prices you pay for fame.While you have to deal with your own incredibly stressful family matters,many people are watching you, advising you as if they knew your business and judging you as if they knew your hearts.
Although these deeply private matters deserve to be kept private, it is unlikely that they will be because the provide the general community with the opportunity to think and talk about societal values, public morals and the good, better, best way to get divorced. As a divorce mediator – someone who facilitates the difficult conversations necessary to engineer the end of a marriage – I spend a significant part of my professional life thinking, writing and talking about what a successful divorce may mean to the people who are pursuing it.
I know it is rare for separating spouses to measure success in the amount of money they walk away with; despite initially thinking that success would be measured this way. Nor do separating couples measure success by how badly, deeply and truly they can hurt the other; despite an initial impulse do exact emotional payback. One of the main problems with the mass media’s take on divorce is its characterization as a fight. See War of the Roses, the fight is finally fatal. In Kramer v. Kramer, one parent is valorized and the other demonized. It is, of course, the “hero” – Dustin Hoffman – who wins.
The starkness of “right” and “wrong” is striking in its lack of nuance.
5 Tips for Defining “success” in Divorce.
1. Trade in Black and White for Grey.
The problem with characterizing a divorce as a fight with winners and losers is that it creates winners and losers. We can do better than that. Think hard about what ultimate success means to you. Think of divorce as a family matter with a legal element, not a lawsuit that happens to be about a family.Think about how the execution of the divorce will affect the dynamic in the family; mediation and other collaborative solutions are not right for every family. Learn how to determine if a collaborative process is right for you.
2. Always ask “and how much will that cost?”
It is one thing to be told you can ‘get $X in court’; it is another to have an honest conversation about the process involved in getting it. Remember to ask your advisors “and how much will that suggestion cost in time, money and emotional fallout”.
3. Always consider your B.A.T.N.A.
In every negotiation, including the multiple negotiations that occur in the context of the dissolution of a marriage, there is a “B.A.T.N.A” to consider. The BATNA is the parties’ best alternative to a negotiated agreement. In divorce, the BATNA is an adversarial proceeding in which a judge decides how your very personal future is going to look. The risk you take when you give a stranger the power to decide your future is that you may well not like that future very much. You have to live with it while the Judge who decided it, or the lawyer who negotiated it, simply moves on to the next case.
There is also a whole lot of possible collateral damage to litigated outcome; financial, emotional, possible negative effects on your kids. What if we, as a society, imagined divorce differently?
4. Family Restructuring
Divorce can be looked at the same way a company is viewed by consultants advising it on restructuring: logically, semi-detached,with an eye on what is best for the bottom line. In a corporate setting the bottom line is money. But in a divorce, the bottom line is often different. What if the bottom line in a divorce was setting up a plan forward which supported successful co-parenting? What if divorce was actually about the financial, emotional and physical restructuring of a family? And what if the reason for that restructuring was to support post-divorce co-parenting?
5. Keep your eye on the prize: The Kids
Why is this so important? Because the latest studies show that kids who are exposed to the least amount of parental conflict do the best long term. Kids who have divorced parents who have a low conflict co-parenting relationship are shown to be vulnerable to the “bad stuff” (drug abuse, suicide, low self-esteem etc…) at the same rate or level as kids from households with low conflict married parents. High conflict post-divorce parenting causes that vulnerability to skyrocket.
That’s why we can and should imagine divorce in a different way, our kids deserve it.
And, so do we.
Many times, in the throes of the emotional context of a divorce, there is a topic that gets missed that can lead to conflict, hurt and embarrassment.As a family and divorce mediator, I know the “significant other” conversation is so important to have.
I always recommend that my clients think about the guidelines for introducing a child to a new person in their life; and the timing of this conversation couldn’t be worse, or better.
We often discuss why it is important to have this uncomfortable and (almost) ill timed conversation during the parenting component of the mediation.
There are two parenting reasons for having an agreement about new people before it becomes a reality.One is that most parents don’t want a child to come home from spending time with the other parent and surprise them with news of time spent with a new person.
If that parent has a surprised or hurt look on their face, then the child will feel as though they did something wrong.Information shouldn’t be transmitted through this kids, it is harmful to the dynamic of the family and unfair to a child.
The other reason for being thoughtful about introductions is that most parents do not want their child to form attachments to new people if they do not have a likelihood of becoming permanent fixtures in their lives.
Adults understand that people come and go from their lives at different times but for children, this concept can be especially confusing.Parents often end up agreeing some type of plan. It could be a guideline that is measured in time together (eg. 1 year), or, for some, an engagement or for others still they can decide to trust the other parent’s judgment.
The important component is to bring this challenging and emotional topic up to parents before it becomes a reality so that there is a plan in place that honors the other, the kids and the family.
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Mediate? Litigate? What does it all mean?
Figuring out how to go about getting divorced is a large undertaking. The problem is that most people are on autopilot when making a decision about what type of divorce they ought to have. We have been taught, via mass media, that divorce is a legal problem. So, when contemplating divorce, people are programmed to view it as such, and legal problems need legal solutions. The logical step is to hire a lawyer.
Next thing you know, you’re on a path from which diversion is almost impossible.
The tough part is, the path might not have been intentionally chosen.
Most people who are divorcing don’t realize there are different options that exist in the realm of divorce services. There are lawyers who view divorce through different lenses. There are people who work with you and your soon to be ex spouse together and apart. Others work to encourage divisiveness, others still who are supportive of a mediative process and others who are not.
How do you decide? Remember, the type of divorce one seeks out is a choice that most people don’t realize they have.
I often tell people I’m not selling anything. Mediation is right for a couple or it isn’t. Here are a few guidelines to help you decide if mediation is right for you.
Full Disclsoure:
In some ways, mediation is a naive process. It only works if the participants want it to. Mediation cannot work if full disclsosure isn’t happening. This means that there must be full access by both participants to financial and emotional information.
That doesn’t mean that you have to take the other’s person word for things, but it does mean that if more than verbal confirmation is necessary, that we would have a conversation about what would be needed to satisfy someone’s requirement for confirming the statements of the other. Maybe a party to the mediation needs credit card statements, or bank statements or tax returns etc…to feel comfortable.
In a traditional litigation, a ‘net worth statement’ is an entitlement of both parties and is mandatory. In mediation, we typically don’t have that requirement unless one or both of the parties needs it to feel comfortable with disclosure. What is essential is that the party who requires greater access to information feels like they can say so, which brings me to guideline number 2.
Both Voices Are In The Room:
The other guideline that is mandatory from my perspective is that both peoples’ voices are meaningfully in the room.
If someone is not able to articulate their thoughts and feelings in front of the other person, then it is possible that mediation is not the right process for a couple.
That is not to say that a person who needs financial, legal or psychological support shouldn’t be in mediation. It means that they should feel comfortable enough to articulate their discomfort and the mediator should be intuitive enough to ensure that all parties are getting the support they need.
What I mean is that if sitting with your soon to be ex-spouse in the same room and articulating your positions, thoughts and opinions is not possible for you, then being able to have a meaningful dialogue in mediation might be too challenging a hurdle to overcome.
Certainly, in cases where there has been domestic violence, or other severe forms of power imbalance, many mediators would advise extreme caution in selecting the process and other’s might outright feel it is inappropriate.
There is a lot more to say about this, but the post is getting a bit long. I’ll write another post soon to continue to help people figure out if mediation makes sense for their divorce and their family.
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Most of my posts thus far have been about family conflict, restructuring and moving on. Today, I feel compelled to address the disturbing tone of political discourse and how it is antithetical to honest debate.
As someone who works in conflict resolution, I am amazed, fixated and revolted by the way engage in political discourse.
The “attack-defend-attack” modality of political dialogue is so misguided. Surely, those who engage in this type of message pushing non-communicating know that defeating straw man arguments is not the stuff of visionaries.
Our society is complicated, diverse and, at times, disconnected. It seems that if solutions are to come to the fore, that tough road must be paved with nuanced dialogue, respectful discourse and the desire to seek genuine understanding.
Those of us who work in conflict resolution know that solutions to complex problems reside in the subtle shades of grey; never in the stark and sharply defined boarders between black and white. We also know that finding allusive or even imperfect solutions takes time, takes effort and takes courage.
Wouldn’t it be refreshing to see someone able to fit the message of understanding into a politically acceptable package? Where is the leader, the visionary , who is able to shame the system without costing themselves the election? Or, have we created a system that will only cannibalize agents of change?
It is only through understanding each other’s diverse experiences and opinions that we will move forward as a country. We do not have to agree with each other, but we should have to listen to each other and seek to understand, in an intellectually honest way, what values and beliefs underlie each other’s opinions.
It is easy to be sarcastic and dismissive. It is much harder to sit with people, to hear them with a genuine desire to understand them and to then formulate an opinion.
So, my wish for 2012 is ‘modest’: Let’s get real, let’s talk, let’s debate with honesty and let’s understand each other better.
To peaceful resolutions in the year to come.
The MediateTrix.
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Lately there has been a lot of press about divorce mediation. The funny thing is, many people have no idea what mediation means, especially in the context of divorce. So, this is my two cents on what mediation is, how it works and why it is ultimately a good thing.
A mediator’s job is to be neutral, to equally support both parties to the mediation in INFORMED decision making and to help the couple figure out what is best for themselves and their family. A mediator helps parties to the mediation talk about the matters between them (in basic terms, money and kids) given the reality that they each face.
A mediator’s role is not to make decisions, it is to empower and enable the participants to make informed decisions. After all, the best experts on their own lives and the lives of their children are the parties to the mediation, not the mediator, not the lawyers and certainly not the judge.
Many of us who work with families know that divorce and separation require nuanced and complex solutions that are best tailored to individual families and their specific needs. Mediation can be a forum in which a couple can make informed decisions about their finances, families and futures. A well executed mediation ensures that professionals provide support and information, but decision making authority resides with the couple.
We know, as mediators, that agreements that are crafted by the parties to a dispute are more likely to be adhered to and are more likely to address the subtleties of the dispute. While we all know, value and respect the role of the courts in our society, we also know that divorce and separation are not strictly legal matters.
I often find myself telling people that divorce is a family matter with a legal element, not a lawsuit that happens to be about a family.It is my view that divorce and separation ought to be viewed by our society as a restructuring of a family–physically, emotionally, financially.
If and when that becomes the lens through which we view the challenges and complexities of divorce, I believe we will reduce the reliance on the courts to solve non-legal problems. Surely as wise and experienced as the judiciary is, the best people to make parenting decisions are parents, the best people to make financial decisions about their own lives are the people most directly affected.
We (those of us who work passionately for the non-adversarial resolution of matrimonial disputes) need to continue to find ways to support informed decision making and to educate the public that there are alternatives to litigation in realm of divorce.My hope is that mediation become not just a ‘viable alternative’ to litigation, but a ‘go to’ starting place for matrimonial matters.
Mediation isn’t right for everyone, but it is right for many more people and families than currently engage in the process. My hope is to shift that ratio a little bit at a time.
How do you know if mediation is right for you? Stay tuned for the next post. . .
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This morning, CNN reports a $154 Million Dollar judgment for wife in a Hong Kong divorce case, after an 8 year marriage.
All I could think about was the enormous legal fees that must have been generated in the case. And, that it was probably fair.
The dollar amount of divorce awards, in the rare cases that are litigated to a conclusion, really can’t be judged in a vacuum.
While it might seem like an obscene amount of money (and possibly worth 8 years of being married!!), most often divorce awards reflect an equitable distribution of assets. Whether the assets are huge or not doesn’t really matter.
The calculus, while not entire scientific, usually reflects the assets, lifestyle and projected lifestyle of the litigants.
In mediation, we look at money differently. We do current and prospective budgets, we figure out what each party needs to live, how much money they are likely to need to spend on their children and we figure out a tailored financial plan that makes sense for the family or couple.
The dollar amounts wouldn’t change that process for us.
Except that…it is hard not to take a moment and contemplate what one might do with a check that big.
Let’s hope she’s a charitable person…
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HuffPo published this article about infidelity today.
It got me thinking about the ways that mediation might be able to help a couple who is struggling with the complex and intense emotions related to an infidelity.
As a family mediator, I’ve come to realize that there is usually not a ‘bad guy’ and a ‘good guy’ in the case of an affair. That is not to diminish any of the related emotions or the feelings of betrayal and/or guilt experienced by the couple, just an observation I’ve made many times.
Often, not always, but often, an affair is a symptom of a larger relationship issue. Relationships are complicated and solutions are often complex as well.
Some couples, who are reluctant to try therapy, seek out ‘couples mediation’ to solve marital disputes. Couples mediation is a task oriented, focused conversation about creating a plan to move forward. It can be very effective to help couples have the challenging conversations that are needed to work past an infidelity or other marital problems. Mediation can be a medium in which the couple can talk, but also can make an action oriented plan.
I’m not in a position to pass judgment on whether engaging in an affair is a worse crime than other ways one can mistreat one’s spouse. I genuinely do not have an opinion. There are many different ways to hurt those that one loves the most. And, what matters most isn’t what I think about a set of circumstances, what matters is what the parties to the mediation think, after a process of informed decision making.
What I do know is that if there is a willingness to, an affair can be an opportunity to examine a relationship and see what, if anything, went wrong. It could be a chance to make what was an unhappy marriage a happier one.
Sometimes, an affair is a marriage ender.
But, it is way too rigid to make a blanket statement like “an affair will end my marriage” without a context. Marriages and families are complicated, and so is divorce.
That’s why it is beneficial not to have preconceived notions about affairs, and to view them as one of many problems that a couple can face. I know an affair can cause a pain that pierces through the reality of what a person thought their marriage was really about. There are, in some cases, however, ways to move forward stronger and better.
Forgone conclusions usually aren’t the best solutions to challenging problems.
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mediatetrix 