Inability to effectively communicate and negative emotions can prevent resolution of minor issues between divorcing spouses.
When facing divorce, the last thing any family needs is arguing and confrontation. Just because two people fall out of love, doesn’t mean they should try to hurt one another emotionally and financially. Divorces can be overwhelming, and are the cause of significant fear and anxiety for a lot of people. What many people don’t realize is that “this doesn’t have to be the case.” The best outcomes in divorce situations is when both parties put their personal feelings aside and view it as a business negotiation. In fact, data from the Project on Negotiation at Harvard Law School substantiates this position concluding that “good decisions are not made when there are negative emotions or fear.’
Many people have heard the term “mediation” and may loosely understand what it means, but don’t have a firm handle on what it can do for them in the context of divorce situation. In Mediation, both spouses come together, for a few sessions, and use interest based negotiations to help them reach agreements on child custody, support and division of assets. After the agreement is reached, the mediator will typically draft a separation agreement. The mediator does not represent either party, and does not give legal advice. The function of the mediator is to assist parties in communicating, and to help them in forming their own resolutions to the issues that they have difficulty with. Mediation can preserve a family’s financial resources, and may accomplish the divorce process in less time and with less stress.
It is important to remember that not all divorcing spouses are going to be candidates for mediation. If one person is using the mediation process in order to “strong arm” the less-aggressive spouse into complying with his or her wants or wishes, this will be a waste of time. Most mediators can see right through this and will end the sessions if it becomes unproductive. There are also no guarantees that a mediation can fast-track a divorce. If the process breaks down at any point, people may find themselves quickly lawyering up.
If a mediation breaks down, it doesn’t necessarily mean a divorce is headed straight to trial. In Massachusetts, (and in a majority of states) most divorces have great potential to settle out of court simply because litigation is expensive and trials can be very time consuming and unpleasant. In Massachusetts, several of the county bar associations offer conciliation programs which have assisted the courts greatly in resolving contentious cases that would otherwise go to trial. These programs are staffed by volunteer family law attorneys who are trained and experienced. They also function as third-party neutrals, so the process tends to move much faster and is more directed than a mediation. A conciliator can make helpful suggestions on how to resolve a case and may also write a report to the court on what options were discussed as part of the process. Sometimes a session is broken down by dividing up into small groups so that each party feels as though they can speak freely if a case is especially contentious. The success rate of conciliation is remarkable in Massachusetts. Roughly 70% of the cases that are referred by the family court for conciliation are resolved and reported as settled.
Managing conflict is never easy, but it doesn’t have to be impossible. A good mediator is open and understanding about different ideas, perspectives and experiences and has creative solutions that take each of them into consideration. Taking the fight out of divorce spares couples time, money and anguish and is well worth the investment.
Wright Family Law Group 