The Good Divorce: Mediation is replacing court battles, and broken families are doing better as a result.Brett Berk
“This is how it happens,” said Christy Mann. “You get in a fight, or admit an affair, or just decide that living a life of quiet desperation isn’t for you, and you vacate the marital residence. You’re now officially separated.” Mann’s an expert on the subject. She was a family attorney for two decades, before being appointed a District Court judge in 2005. “You can stay like this forever,” she continued, “and this state won’t get in your business.” But marriage is a state-sanctioned union. So if you officially want out – to remarry, go gay, or simply change tax brackets – you need the State to dissolve it for you. You’re getting divorced! What now?
If you’re like me, you probably imagine that divorces are decided in a courtroom by a Judge, and feature conflicting testimonies, private investigators, hidden assets, and machinating attorneys. Sounds technical and terrifying (or like a great Joan Crawford movie). But as it turns out, this is exactly the venue some sparring spouses desire. “These people think that their divorce is going to be like Oprah,” said “Leah,” a long-term New York City Family Court employee. “They think they’ll get to come into the courtroom, spill all their intimate details, be heard, and be vindicated: that an impartial judge will tell them, Yes, actually. You’re right, and your ex is an asshole.” She paused, dramatically. “Sadly, that’s not how it usually happens.”
So how does it happen? Well, according to my divorce industry experts, when one chooses the traditional route – using oppositional lawyers, indirect communication, and the court system – things tend to get:combative. The attorneys are paid to represent only their client’s interests, the spouses are told to go for the jugular, and the judges are left to use the blunt cudgel of property law to resolve an incredibly intimate conflict. “The court system isn’t really geared to solving these kinds of interpersonal disputes,” said Judge Mann. “If you think of a divorce as delicate surgery, as a Judge, my finest tool is a chainsaw!”
While the great majority of court-based divorces don’t end in tabloid-y trials, they do have to wend their way through the system, racking up fees for the attorneys on both sides. The average cost of a fully-litigated, courtroom divorce is nearly $80,000, and even a standard one with dual legal counsel comes in around $27,000. “In the long run, the lawyers make out,” said Jack Maiorino, a recent divorcee and New York City Court Officer, who’s overheard his share of bitter battles in the halls of justice. “You’ve essentially given your attorney permission to tear the head off your spouse. Let’s just say, it can get ugly.
Things can become even “uglier” in court when the battle-worthy marital assets include children. Arrangements regarding the kids – where they’ll sleep, who’ll make decisions, who’ll pay for what – are approached with the same greedy antagonism as the division of the 401k. “People find ways to take the kids on the ride with them,” said New York Family Court employee, Leah, “bringing them into their animosity and despair. They’ll fight to the death over holiday schedules, who should pay for shoes, or who can come to which little league games.”
For many divorced parents, it’s this intractable sense of being trapped in a relationship with someone you despise that’s the stickiest marital residue. We kids of divorce witness this fallout all the time: in the subtle digs one parent makes against the other; in the TMI stories of an ex’s transgressions. One interviewee discussed moving back home after grad school. Her parents had divorced when she was a teen, but whenever she and her mom argued that year, the fight would inevitably end with her mother screaming, “You’re just like your father!” “Once, when an argument started, I said to her, Why don’t we just skip all this and go right to you screaming that I’m like Dad. She threw a lamp at me. This is a sane professional woman, years later. The pain remained that profound.”
So if you’ve bought a one-way ticket to Splitsville, but don’t want to arrive at your destination all nasty and bitter, what are your options? “I think a lot of divorcing couples would do better in a mud-pit,” Leah said. “Get that aggression out early on.” But if such a venue isn’t available – or it’s occupied by female wrestlers – another functional alternative exists: Mediation. Instead of squaring off in court using attorneys as stand-ins, in a mediated divorce, the participants agree to sit face to face with an impartial third party, and hash through their problems and property.
“One of the major benefits of mediation is that it reflects a proper balance of roles,” said June Jacobson, a New York City Family and Divorce Mediator who’s also a licensed Social Worker and an Attorney. “In a adversarial divorce, the lawyers have the primary role, and the clients a background one, which seems crazy. Mediation puts the clients and children in the center, and gives them the opportunity to decide what they want moving forward.”
That made sense to me. All my friends wrote their own wedding vows, and designed their “quirky” ceremonies. I’m sure, if they were getting divorced, they’d want to be that show’s writer/director/producer/star too: to put their personal imprint on things. Mediation sounded like unwriting your own vows. In a typical mediated divorce, the warring parties sign a pact promising to work things through. Then they go to mediation sessions. Some people only need one session, others, twenty or more. The mediator asks them questions, but remains neutral, with the goal of creating a settlement that is drafted jointly by the participants – one that takes their specific cultural, emotional, and financial concerns into account, and dices things up in a way that feels fair to both of them. This agreement can then be reviewed by each spouse’s attorney, and changes can be made, before the document is submitted to the authorities. “We didn’t even have to go to court,” said Deb Gibbard, a recent divorcee and client of Jacobson’s. “June got it signed and sealed for us.”
One of the mediator’s core tasks is to guide their clients past rage. Mediators tend to have an evangelical perspective on their job; every one I spoke to was just thrilled to discuss their process. This proselytizing alienated me initially, putting me in mind of similar pitches about The Secret or the powers of Blue-Green Algae, but their claims were rousingly seconded by their clients and members of the judiciary. Plus, many benefits of mediated divorces seemed objectively clear. They cost 1/4 to 1/10 of other options – allowing couples to keep more of the money they’re battling over. They take less time, usually getting resolved in 3-6 months, as opposed to 1-2 years for a litigated split. And instead of encouraging their clients to gain strength from their opposition, one of the mediator’s core tasks is to guide their clients past rage, and toward an equitable solution, one which they’ve both crafted, and on which they both agree. “People who mediate tend to be more satisfied with their settlement because they have greater buy-in. They’ve had to work their process to get there, and they created it,” said Jacobson. “So they own it.”
Her client, Deb Gibbard, echoed this opinion. “The beauty of mediated divorce is that you have to sit next to your soon-to-be ex, looking at his pained face. And you’re in pain too. But instead of having a lawyer there to work up your anger – which takes the place of pain – you have to confront it. I’d say it’s a more difficult process, emotionally. But it’s also cathartic. It causes you to do some of your grieving for the relationship while it’s going on, instead of just becoming hardened.” Her ex-husband, Jack, seconded her thought. “Mediation really makes you address what the relationship was, and deal with the fact that it’s over.”
Perhaps most important for couples with kids, is the fact that mediated settlements tend to be extremely child-centric. They allow participants to collaboratively custom-tailor a plan to meet the needs of their individual children and their relationships with those children, not simply to follow arbitrary custodial guidelines. “I don’t know your kids,” said Judge Mann. “I don’t know the minutia of how they respond to situations.” Sara Guciardo, a licensed mediator in North Carolina, affirmed this difference, in the spirited tone endemic to her profession. “The first thing I ask participants to do is talk about their goals for their kids: what they want them to achieve, what morals they want them to live by. Then we come up with a plan to meet these goals.” While Judge Mann always finds herself admonishing courtroom divorcees to “Let your love for your children outweigh your hatred for your ex,” to have the proceedings be “Child-centered instead of adult-centered” and to remember to “Take on the hurt, so your kids don’t have to,” Guciardo told me that, as a mediator, “I have yet to meet a couple who can’t put their animosity aside to focus on creating common goals for their kids.”
Even outside experts agree on mediation’s benefits. In a longitudinal study by Robert Emery Ph.D. – a psychologist and Director of the Center for Children, Families, and the Law at University of Virginia – families filing for a contested custody hearing were randomly assigned to either mediation or a traditional battle. Following these families for twelve years after this, Emery found that those (non-custodial) parents assigned to mediation were three to four times more likely to see and/or speak to their children weekly than those assigned to adversarial settlement. Moreover, custodial parents who did mediation gave their non-custodial exes better “grades” in every area of parenting – including discipline, grooming, moral training, celebrating holidays, taking part in events, and discussing problems – than those who didn’t. These couples had only five hours of mediation on average. But the small-scale collaboration at this crucial moment made a lifetime of difference for them and their children.
After hearing all of this, I was ready to run out and get a mediated divorce myself. (Except, where I live, I’m not legally allowed to marry.) But first I had to investigate any downsides to this practice. All my interviewees said the same thing: for mediation to work, both partners need to feel like they can safely voice their needs and desires. So it’s not great for people who are too emotionally distraught to advocate for themselves, for someone who’s hoping the relationship will reconcile, or for a couple with an extreme power imbalance. It can also be difficult if the two partners are at very different stages in reconciling the relationship’s end. I was ready to run out and get a mediated divorce myself. As Judge Mann put it, “Divorce is a grieving process, just like death. Most of the time, the dump-er has done much of their grieving in the home prior to initiating the split. They’ll think about it for months or years, then one day, they’ll say, ‘You know all those nights I’ve been lying in bed with my eyes open? I’ve been thinking about how much I hate you.’ The dump-ee then has some catching up to do.”
But for splitters who don’t feel saddled with these issues, the jury seems in on mediation to me: it’s cheaper, faster, and better for the kids; plus it makes you a better person. In the words of recent mediated divorcee Jack Maiorino, “I think it was better all the way around. Not just for then, but now. When we get to a bumpy spot, we use what we learned to get through it.” His ex-wife, Deb, concurred. “When you have a kid with someone, you’re tied to that person for life. So it doesn’t suit anyone’s needs to be angry forever. I’m still me, and Jack’s still who he is. But in mediation, we created a trust that we’re both always going to do what’s right for our son. I’m so glad we got to that point.”