Mediation as a divorce option has grown substantially over the years and is now considered mainstream. In the past few years, there has been growth in the use of co-mediation, with partnerships of Attorney/Mental Health Professional and Attorney/Divorce Financial Specialist. The focus of this article is the benefits of Attorney/Mental Health Professional (MHP) co-mediation for the Mediators and the participants.
Attorney Mediators routinely refer their divorce clients to MHPs to help parents develop Parenting Plans. They now see the advantage of having a MHP as a partner in the process, helping the parties untangle and address the emotional concerns affecting the divorce process.
There are two tightly interwoven threads in the tapestry of divorce: the emotional and the legal. Attorney Mediators provide a roadmap of legal issues that must be addressed in a divorce and facilitate negotiations over alimony, asset allocation, and pension distributions, but they are not trained in getting at the emotional factors underlying the resistance that can make it extremely difficult to reach agreements. Sharing the emotional journey with someone trained in this area can be a great relief — to relax, to know a partner is addressing those topics about which the Attorney Mediator feels less comfortable, allows for better thinking.
As objective as we like to think ourselves to be as mediators, we are human beings, subject to biases and automatic brain-based emotional reactions. The co-mediator observes while their partner interacts with the couple and brings into awareness things that might not have been addressed. Additionally, inside a mediation in which emotions are running high, a mediator may have their own fear-based reactions that hinder optimal thinking. The co-mediator can intervene and provide a more fully conscious and considered response, resulting in a better chance of maintaining objectivity.
Specifically, the benefit of a partnership between mediators from different professions is that each person behind the other set of eyes provides a unique perspective; a way of listening arises from each professional’s education and training, knowledge, and experience, and naturally results in the ability to focus on different aspects of the process. This is the source of a broadened context inside of which the work is being done and allows for more points of entry into the couple’s thinking and their experience. It allows for a broader range of considerations, creates a wider variety of openings for solutions, and offers greater opportunity for untangling the emotional thread from the legal one.
An Attorney/MHP co-mediation allows for particular power in the conversations required to divorce. The extent to which couples can untangle “what’s so” (the facts) from their emotional reactions is the extent to which they will be effective in listening to each other, generating options, and making concessions. The ability of Co-Mediators to distinguish these two threads enables people to more easily come to an agreement. Clarity, velocity, and power come from uncollapsing the layer of emotions from the legal/factual considerations in a divorce.
Conversely, in other conversations during the divorce process there is benefit to the Mediator bringing in more emotional/psychological factors to the law; recognizing the emotional piece allows the mediators to go in directions not codified in the statutes. It can bring more of the clients’ “real” life to the standard considerations of the law, resulting in deeper and more satisfying solutions that align with the clients’ values and concerns, and better serve their future adjustment.
Let’s look at a sample family: Maureen, age 32, owner of a small real estate business, and Phil, age 30, a school teacher, with three children, ages 4, 6, and 8. Dad teaches at the same school their children attend. He takes care of the children after school and during the summer. Maureen parents the children all day Sunday, takes off from work if they are sick and arranges their medical appointments and play dates. They present as two loving, caring parents who share parenting of their children fairly equally. The Mediators are therefore surprised to hear that Phil does not want Maureen to have the children overnight. He simply asserts that the children are used to being with him at night, and it is in their best interest to be with him. Maureen waffles on this, sometimes asserting her desire to have them overnight and at other times conceding it would be easier for the children to stay with Phil, who would bring them to school. The Mediator caucuses and discovers that Maureen drinks heavily at night, but never during the day or on Sundays. During discussions, Phil gets quite hostile with Maureen and says he cannot discuss financial issues “until this is settled.” The mediators understand that there is a history of alcohol abuse in both Phil’s and Maureen’s families and that concerns over alcoholism will underlie all negotiations. The presence of the MHP allows for addressing concerns over alcohol in a direct and structured way, assessing the actual risk level and any needed precautions, as well as helping the parties understand how their family histories affect their present-day judgments and fears. This disentangling of the current facts and needs of their lives from the past enables Maureen and Phil to craft solutions that work for the entire family.
Once those conversations were complete, Maureen and Phil could then talk about finances. Though Maureen earns considerably more than Phil, Phil did not want to accept child support from Maureen. He heard from someone that if you have shared physical custody, there is no child support, but someone else told him there is. At first, Phil envisioned having the children most of the time with Maureen supporting them financially. Once the safety issues were addressed and Phil could support Maureen having more access to the children, Phil felt that he could “take care of my own children without her help.” The parents were given the Child Support Guidelines to review. At first Phil and Maureen barely glanced at the Guidelines, voicing the opinion that “they were ridiculous” and that the amount of money determined to support the children was “ridiculously low.” “How could that amount of money address dance classes, lacrosse, and college?” Suddenly, they were examining the Guidelines for answers and pursuing a discussion of other child expenses. After a conversation about “deviation criteria” they reached an agreement: in lieu of child support, Maureen would take the difference in their net incomes and put it into a college fund for the children. Bringing the structured information from the law, the Child Support Guidelines, into the conversation helped Phil and Maureen anchor and sort out their considerations about expenses and support, which began as an emotionally driven conversation.
The co-mediation allowed Maureen and Paul to:
Better understand their fears and concerns
Identify risks to the children
Develop a Parenting Plan that serves the best interests of the children
Address financial interests from an unbiased position
Address all aspects of the divorce without their judgment being clouded by their fears and their history
Create an Agreement that addresses the specific needs of their family and is compliant with state statutes
Move forward despite the past
Co-Mediation allows for ease and flow in untangling the intertwined threads of emotions and legalities. Consider Co-Mediation as an option for your next mediated divorce.