Attorney for the Child: When the AFC believes the child lacks capacity, or that the child’s wishes are likely to result in harm?

In my last post, I began writing about the role of an Attorney for the child (AFC), focusing on the following questions:

  1. What does an AFC do, generally speaking?; and,
  2. What if the AFC believes that what the child wants is not in the child’s ‘best interests’?

Question #2 assumes that, though the AFC disagrees with the child (client) on some matter, the child is capable” of making decisions

Here, I continue with a different question:

What if the AFC believes the child lacks the capacity for knowing, voluntary and considered judgment, or that the child’s wishes are likely to result in harm?

According to the Code,

When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child’s wishes. In these circumstances, the attorney for the child must inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position.[i]

A child may be deemed to lack the capacity not only due to age, but also due to mental illness.[ii]

Note that the AFC would be justified in advocating a position contrary to the child’s wishes if the AFC is convinced that,

following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, . . .[iii] (emphasis added).

While an AFC may act in opposition to the child’s/client’s wishes under certain circumstances, the AFC’s ability to do so is limited.

The standard leaves room for doubt – for instance,

What exactly does “serious harm” mean?

What does “imminent” mean?

Though these questions are debatable, perhaps even amongst judges, an AFC does have to meet a certain standard.  An argument by an AFC that something bad might happen years in the future as a result of following the child’s wishes, would be unlikely to meet the standard’s criteria of “likely to result” and “imminent” harm.

Note further that the AFC,

must inform the court of the child’s articulated wishes if the child wants the attorney to do so, . . . (emphasis added).

Speaking for myself, I like the idea that the court will be informed when the AFC and child disagree.  (The “must” part of this text).

But this requirement to inform the court is conditional; the AFC must inform the court if the child wants the AFC to do so.  This qualification concerns me.  You don’t need to be a mediator to know that many adults have difficulty expressing their needs and handling conflict well.  Can we expect children – who are probably under great stress due to the parental conflict, and very possibly caught between their parents – to express their disagreements with a lawyer, and be strong enough to say, “I want you to tell the judge my wishes on this matter, even though you don’t agree with me”?

It seems a lot to ask.

Whatever the answer, be aware that an AFC may be part of your case.

[i] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(3).

[ii] For that matter, adults may also lack the ‘capacity’ to make decisions due to mental illness.

[iii] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(3).

 

 

How Long Would Mediation Take in My Case?

Elsewhere, I have written about on “Why Mediation Is Faster than Going to Court”.  Here, I want to share information about how long you should expect mediation to take in your case.

As something of a baseline, many spouses complete divorce mediation within three to six months.  Of course, a case may take more time, or less.  But what can you expect?  The answer greatly depends on you and your spouse or partner.  Consider the following factors:

Complexity of the case:  Some cases take longer than others because there are more issues to deal with.  Do you have children, own a home, have investments and so on?  You’ll have more work to do than couples that don’t.  Parents having three children may need more time to discuss and reach agreement on their kids than parents with one.  If a child has special needs, that too may warrant a longer conversation and perhaps the gathering of additional information.  Have a Picasso?  You might want to have that appraised, and scheduling that appointment may take time.  Far more common is meeting with an accountant, financial planner or lawyer.

Communication between you:  Can you and your spouse speak civilly and listen to each other? Or, do you bicker constantly?  It shouldn’t be surprising that couples who communicate fairly well go through the mediation process more quickly than those that don’t.

There are spouses who can even work well together outside of sessions.  If that is you, so much the better; you’ll not only save time, but money as well, as there will be less to mediate about.

Doing the work that’s required outside of sessions:  At a session, did you tell the mediator that you would have that Picasso valued, but just can’t seem to find the time?  Yeah, that will hold things up, the same as if you don’t find out what your home is worth, or gather bank statements and other information that needs to be discussed.

Length of sessions:  If you have the information you need and are ready to discuss it, you can accomplish more in a two-hour session than a one-hour session, allowing for fewer (but longer) sessions overall, and maybe over a shorter period of time.  But making sessions longer only makes sense up to a point.  (Some parties prefer to stop after one hour, and in those cases, that is what we do.)

Even after ninety minutes or the two-hour mark, many people are tired, and it doesn’t help clients to keep going if they aren’t thinking clearly; the same can be said of the mediator.  Marathon sessions, lasting for hours – in which some divorce mediators engage – doesn’t make sense to me, and so I don’t do it.

Your respective schedules:  If you both are available to meet pretty regularly, and without much time between sessions (say, every week or two), the mediation will go quickly.  But there may be a demanding work schedule, perhaps including out-of-town travel.  There are parenting responsibilities that trump everything else.  Holidays and birthdays, school plays and work functions.  Planned vacations and the unexpected broken pipe.   A lot of what can affect the length of the mediation may have nothing to do with your separation or divorce, but rather with the other things going on in your lives.

Conclusion:  Consideration of these factors should give you a good sense of how much time mediation would take in your situation.  Again, if you are like most people, the chances are very good that you would complete the process within three to six months.  But wherever you are on the continuum – or even if you fall outside of it – if you and your spouse or partner are good candidates, you can expect to spend a whole lot less time (and money) in mediation than you would fighting it out in court.

Parentification: A Damaging Role Reversal

Separation and divorce can be devastating.  “Jennifer”, who hadn’t wanted the split, cried continuously for days.   She felt sick, and had to force herself to eat.  Her every thought included painful ruminations on what she had or hadn’t done, fears about money, self-sufficiency and loneliness.  An expensive and bitter court battle appeared likely, and Jennifer was overwhelmed.

During divorce, when we need to be at our best for our children, we are often at our worst.  Feeling vulnerable, we may lean on our kids more than is healthy.

Parentification, a type of role reversal where a child cares for the parent rather than the other way around, is a prime example.  For a weary, even shattered adult, relying on a child can ease the burden; but, it is damaging to the child.

Ari E. Fox, LCSW, a child and adolescent therapist in New York City, told me that “parentification can rob an individual of his childhood by placing an enormous level of stress on the child, forcing him to grow up too quickly,” and that the parent may turn the child into a full-fledged confidant or even a pseudo spouse.

A child may also be relied upon to perform an excessive amount of the chores and take care of younger siblings.

Of course, assigning chores and having a mature older sibling babysit on occasion can help children learn responsibility (and make your life easier); and, sharing a certain amount of information with them is necessary.  An example:  If you need to move to a new home, it is better to tell your children beforehand so that they have time to adjust, rather than surprising them with the news the night before.

So what are the limits?  What is appropriate to share with a child?  Ask yourself the following:

Do you think of your child as your “best friend”?  Upon coming home from a date, do you share many details with your son or daughter?  When dealing with stress, do you look to your child, figuratively or literally for a shoulder to cry on?

If so, you may well be crossing a line, to the detriment of your child.  Granted, older teenagers can generally handle more than younger children.  But, there should be very real boundaries.

It is one thing to breakdown in front of your children on occasion.  This happens, and can even have a positive side in that it allows children to see that you are human.  But, such an experience can be very frightening – children need to know that you are in control, and may wonder “If Mom (or Dad) can’t take care of herself, how can she take care of me?”

So after the well-deserved meltdown, let your child know you are alright.  Maybe say, “I’m sorry about the crying/sad faces/slamming the door.  Sometimes it’s hard, and I don’t handle the stress so well.  But mostly, I’m doing okay.  The time I spend at Aunt Judy’s/swimming/the support group/taking my computer class really helps me.  I know we’ll get through this and that things will get better.”

Be aware:  children may not see any problem in acting the adult. Hearing about the new man or woman in your life can make a daughter or son feel grown up, and what kid doesn’t want that sometimes?

But, while children may seem to handle the grownup role, they pay a price.  Fox noted that parentified children “often have difficulty with attachment and struggle with relationships as adults.  They can become quite angry at their plight and what they have given up in their lives.”

We all need help sometimes – but shouldn’t look to our children for it during divorce.  Consider a support group, therapist or divorce coach.  Do what you need to strengthen yourself – and let your child worry about his next math test, acne and getting a date with that girl he likes.

More Mediation Soon to Take Place in New York – Much More

On July 11th, a meeting was held at John Jay College of Criminal Justice.  The meeting – on expanding the use of mediation and other types of “alternative dispute resolution” (ADR) in New York State – was led by Lisa Denig, Special Counsel for ADR Initiatives, Office of Deputy Chief Administrative Judge George Silver.

This meeting followed a May 14th press release from the New York State Unified Court system stating that:

  • In a transformational move to advance the delivery and quality of civil justice in New York as part of the Chief Judge’s Excellence Initiative, Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks today announced a systemwide initiative in which, aside from appropriate exceptions, parties in civil cases will be referred to mediation or some other form of alternative dispute resolution (ADR) as the first step in the case proceeding in court. Dubbed “presumptive ADR,” this model builds on prior successes of ADR in New York State and in other jurisdictions by referring cases routinely to mediation and other forms of ADR earlier in the life of a contested matter.
  • A broad range of civil cases, from personal injury and matrimonial cases to estate matters and commercial disputes, will, at the onset of the case, be directed to ADR ̶ which comprises a variety of resolution approaches ̶with a focus on court-sponsored mediation.

Mediation – as the word is commonly used – may require the mediator to play a number of roles when working with parties engaged in a dispute.  A mediator:

  • acts as a neutral third party;
  • helps the disputants to listen to and better understand each other;
  • assists the parties in gathering and sharing information they need to consider;
  • works with the parties so that ideally the parties themselves develop options that may allow them to move forward;
  • helps the disputants to consider their options so that they can make the best decisions possible; and,
  • engages the parties in ‘reality testing’ to ensure to the extent possible that their choices are feasible.

It is expected that the expanded use of ADR in the state will lower costs for parties, allow for faster resolution of matters, and “improv[e] case outcomes.”

What does this mean in practical terms?  Taking matrimonial cases as an example, many spouses are likely to reach their divorce agreements in a matter of months, rather than years.  They will often spend a few thousand dollars, rather than tens or hundreds of thousands of dollars.  Though the spouses may not part as friends, in many instances they will experience less stress and bitterness than if they were to litigate.  Emotionally, parents and children will usually benefit as a result.

The press release notes that, “Court-sponsored ADR has a proven record of success, with high settlement rates and strong user satisfaction among litigants and lawyers.”

In September, administrative judges around the state are required to share information about how the expansion of ADR will proceed.  (It should be noted that numerous ADR programs already exist in New York; however, they are considered to be “under-utilized.”)  Rolling out the new programs will take time.  Not everything will be ready all at once.  But it appears that over the coming months and years, New York will join other states that encourage parties to resolve whatever issues they can without the adversity and expense that litigation so frequently incurs.

Mediation, and ADR more generally, is not a panacea.  Not every case will be settled using these processes.  But many will, and this is excellent news for the parties, an overwhelmed and backed up judiciary, and New York State.

Loneliness again

Last week, I wrote about The loneliness of divorce, especially during the holidays.  In it, I looked to an article (Happy Holidays? Maybe and Maybe Not) by Vickie Adams, a Certified Divorce Financial Analyst and Certified Financial Planner.  Adams discussed a close friend who had seemed to be in a great marriage; but in reality, there was much loneliness and suffering underneath.  I discussed lonely feelings that I had during my own divorce and how isolated I felt, as if I were the only one in the world going through a marital breakup; though of course many people were, and though as a divorce mediator and as a lawyer, I knew full well how common divorce actually is.

This morning I read a piece (The Dark Side of Loneliness) by Darlene Lancer, LMFT, Author, Speaker and Life Coach.  She shares that:

  • Twenty percent (60 million) of Americans report that loneliness is the source of their suffering.

And, as many of  us know firsthand, we don’t have to be alone to feel alone:

  • [Loneliness] can be felt while in a relationship or group. This is because it’s the quality, not the quantity, of social interactions that determines whether we feel connected.

She (and others) attribute loneliness in part to the use of digital devices, stating that “People spend more time on [them] than in face-to-face conversations.”

Lancer refers to her own experience:

  • Years ago, I believed that more shared activities would create that missing connection, not realizing it was something less tangible–real intimacy, which was absent in my relationship. (See “Your Intimacy Index”). Instead, like most codependents, I experienced “pseudo-intimacy,” which can take the form of a romantic “fantasy bond,” shared activities, intense sexuality, or a relationship where only one partner is vulnerable, while the other acts as adviser, confidant, provider, or emotional caretaker.

She discusses the connection between loneliness and shame, and how these feelings can stem from childhood experiences.

  • Meanwhile, children’s growing sense of separation from themselves and lack of authentic connection with a parent(s) can breed inner loneliness and feelings of unworthiness. “The awareness of human separation, without reunion by love–is a source of shame. It is at the same time the source of guilt and anxiety.” (Fromm, E., The Art of Loving, p. 9)

Feeling lonely, we may withdraw, which often results in greater feelings of isolation and loneliness.

Further, Lancer writes about health risks associated with loneliness, which I’ll leave you to read about, if you care to.

There are ways to cope with loneliness, though taking that first step may be difficult.

  • We really have to fight our natural instinct to withdraw. Try admitting to a friend or neighbor that you’re lonely. To motivate socializing with other people, commit to a class, meet-up, CoDA or other 12-Step meeting. Exercise with a buddy. Volunteer or support a friend in need can to take your mind off of yourself and lift your spirits.
  • As with all feelings, loneliness is worsened by resistance and self- judgment. We fear experiencing more pain if we allow our heart to open. Often, the reverse is true. Allowing feelings to flow can not only release them, but also the energy expended in suppressing them. Our emotional state shifts, so that we feel invigorated, peaceful, tired, or content in our aloneness.

It’s a fact – the holidays can be a time of loneliness; cold weather and less sunlight at this time of year don’t help.  But perhaps knowing that many others feel similarly can provide some type of comfort.  And maybe you can or will be able to follow Lancer’s advice, or other good advice that’s out there.  Perhaps tomorrow.  Maybe even today.

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All blog posts are for information purposes, and should not be considered as legal advice.

The loneliness of divorce, especially during the holidays

Vickie Adams, a Certified Divorce Financial Analyst and Certified Financial Planner,  recently wrote about the difficulties that many have at this time of year.  (Happy Holidays? Maybe and Maybe Not.)

She begins by talking about a friend who seemingly – or perhaps actually, at one time – had the type of marriage that others would dream of.

  • I have a close friend whom I’ve known for many years. She is always busy, dressed to the nines. I’m most likely to see her pulling out of her driveway, on her way to another weekend getaway or special event with her handsome husband and a smile on her face. One year, I watched them on successive days of the week go out and keep adding to their front yard Christmas display, until I thought it could be seen from outer space. I thought, “Wow, she’s so lucky to have such a great partner who takes such an interest and is willingly out there participating in these things with her.”

But, then Adams learned from her friend that all was not as it seemed.  The couple would be divorcing, and the friend shared how she was “struggling to regain her self-worth after years of put-downs, criticism and infidelity.”  What had appeared on the surface to be one thing, was something very different underneath.

Adams finds her friend’s situation to be a “kind of analogy for the holiday season.”

  • For weeks, we are bombarded with holiday images of people enjoying meals and activities with friends and family; exchanging beautifully wrapped and often expensive gifts; decorating their homes. We are shown constantly that some lucky woman out there somewhere will be the recipient of a fabulously expensive Lexus, complete with a huge red bow, courtesy of her husband.
  • The message is that everyone is happy and joyous and has an unlimited gift budget. The subtle underlying message is, there is something wrong with you if you aren’t having the same experience.

But of course, the reality is different.

I say “of course”, but I remember my own divorce.  I felt alone, and that I was the only one going through a breakup.  That I had failed, whereas everyone else was in a successful marriage.

My feelings were not matched by what I knew to be true:  Many people  separate and divorce.

Pretty much anyone who knows anything about American society, at least when it comes to the family, is aware that divorce is common.  And as a long-time divorce mediator, I knew that as well as just about anyone.

But, I felt like it was only me.  I think that this is why the post by Adams resonates with me.

Not only are there messages telling us that this is a time to be joyous, but we as individuals may tell ourselves the same thing, beating ourselves up for sadder feelings that are natural and predictable.  We may put up a front and tell others – neighbors, friends and even family members – that things are alright, when they are anything but.

Adams writes that:

  • While some people are actually enjoying the holidays, a larger number, maybe 40%, are thinking:
    • I just have to make it through, and I can file for divorce after Christmas
    • I’m only here because of my child
    • I’d rather be alone
  • But there is nothing unique about not enjoying the holidays. Advertising and people’s perceptions aside, the holidays can be especially tough for those in the divorce process or the newly divorced. For many, it’s a time of painful memories, what if’s, adjusting to new parenting schedules, or financial concerns.

It can be hard to remember, and harder to feel, but the truth is that many people are involved in a breakup.  (This is not to say that anyone else could ‘put herself in your shoes’; you are an individual, and that is to be respected.)  Your feelings are legitimate, and if you can keep from beating yourself up for having them, this difficult time may become slightly easier.

In separation and divorce, there is a grieving process to go through.  The changing dates on a calendar can’t change that.

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All blog posts are for information purposes, and should not be considered as legal advice.

‘Gray divorce’: How much of the growth in older people divorcing is due to the reluctance to try counseling, or skepticism that it can help?

Therapists have told me that when there is conflict, younger couples often begin therapy earlier than older ones. How much does this reluctance to begin contribute to Gray Divorce?

In 2013, a study came out entitled, The Gray Divorce Revolution: Rising Divorce among Middle-aged and Older Adults, 1990 – 2010.  Authored by Susan L. Brown and I-Fen Lin, both in the sociology department of Bowling Green State University, their research is revealing.

Here are some of the results:

  • The divorce rate among adults ages 50 and older doubled between 1990 and 2010.
  • Roughly 1 in 4 divorces in 2010 occurred to persons ages 50 and older. . . .
  • The rate of divorce was 2.5 times higher for those in remarriages versus first marriages while the divorce rate declined as marital duration rose.

The study looked at many factors and circumstances that may contribute to gray divorces. Some of them are directly related to “the unique events and experiences characterizing” the “life course stages” of middle age (50 – 65) and older adulthood (65+). During these stages, “many couples confront empty nests, retirement, or declining health, which can pose considerable challenges for marital adjustment. These turning points can prompt spouses to reassess their marriages, ultimately leading them to divorce.” (Citations omitted)

Other findings include:

  • Middle-aged adults are experiencing a higher rate of divorce than older adults.
  • Men and women 50 and over are divorcing at very similar rates (9.8 divorced men per thousand married persons; 10.3 women divorced per thousand persons).
  • “There is some racial and ethnic variation in the risk of divorce among those ages 50 and older.”
  1. Blacks (20.5 divorced persons per 1,000 married persons)
  2. Hispanics (11.3 divorced persons per 1,000 married persons)
  3. Whites (9.0 divorced persons per 1,000 married persons)
  • “The divorce rate also differs by economic resources” – including education. Those with a college degree experience a considerably smaller risk of divorce compared to those with lower levels of education.
  • The rate of divorce is highest among the unemployed.
  • Older adults who are not in the labor force (presumably because they are retired) have the lowest divorce rate.

One factor that isn’t considered by the study is the hesitation by those who are older to engage in therapy.  While a younger generation has grown up with the idea of meeting with a psychologist or social worker, for people who are older the thought may have more of a stigma.  For older adults willing to try therapy and couples counseling, how many are skeptical or so uncomfortable that they are unable to fully engage in the experience, and therefore end the process prematurely, or otherwise hold themselves back and greatly lower the chances that it will be helpful in saving their marriages?

In addition to factors that apparently contribute to gray divorce, the authors discuss the “implications for individuals, their families, and society at large.”

  • It is likely that divorce has “negative consequences, particularly for those who did not want the divorce or who are economically disadvantaged or in poor health.”
  • “Divorced older adults no longer have a spouse on whom to rely and are likely to place greater demands on their children.” These children may be asked to serve as care givers in lieu of the absent spouse. “The strain of such intense obligations may weaken intergenerational ties. . . .
  • Adult children are particularly unlikely to provide care to their divorced fathers.”
  • “Some older adults may not have children available nearby to provide care,” and so “the rise in later life divorce may place additional burdens on society at large, as divorced individuals will be forced to turn to institutional” assistance rather than look to the family for support.

The study, which the authors acknowledge has limitations, is somewhat alarming. But having this information will surely help society deal with the consequences of gray divorce, which are likely to become more apparent over the coming years.

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All blog posts are for information purposes, and should not be considered as legal advice.

When a Conflict Can’t Be Resolved – Part 2 of 2

In Part 1 of this post, I discussed issues raised by Bernard Mayer in his book, Staying with Conflict:  A Strategic Approach to Ongoing Conflict.  As mediators, we talk about ‘Conflict Resolution’ and ‘Dispute Resolution’.  Our field is often called ‘Alternative Dispute Resolution’.  With so much of our focus on ‘resolution’, are we as mediators missing many of our (potential) clients’ concerns?  When we say to them that we help to resolve conflict, do some tune us out, because they know very well that not every problem can be fixed?

His answer is ‘yes’.  Many parties come to us with certain disputes that we may be able to help them resolve.  But frequently, they all also involved in ‘enduring’ or ‘long-term conflicts’ that aren’t resolvable, regardless of our skills and experience as mediators. These unresolvable disputes may, however, be manageable.

I’ll leave it to you to read Part 1 of this post as I continue now with the following question:

What does enduring or long-term conflict mean and look like for a divorcing couple; let’s say one with young children?   These parents know that they will have to deal with each other for many years to come.  Many such parents can reasonably expect frequent disagreements, tension, arguments, perhaps accompanied by pressure to give in and abusive language.

And so, if a mediator explains to such a couple that “I will work with you both so that you can reach agreement on all of the matters that you need to, so that you’ll be able to move on with your lives”, maybe that comes across to the parties as hollow.  Naïve.  Unrealistic.  Perhaps mediation sounds too good to be true, and so is seen as a waste of time and money.

In a blog post I wrote, Words Matter:  Out with ‘Custody’; In with ‘Parenting’, I discussed the importance of language when dealing with conflict.  While mediators know (or should know) this, we may be unclear in telling others about what we do, and what the potential parties can reasonably expect.  We can do better with our explanations.

Let’s see if this explanation rings truer and is more in line with the expectations of many people in conflict.  Let’s say it is for a couple ending their marriage.

  • If you’re getting divorced, I can help you to discuss the issues between you, and to reach agreements on all the matters you’ll need to, in order to be divorced under New York State law.  This doesn’t mean that all of your issues will be permanently resolved, and that you won’t have disagreements in the future, about your children, for instance.  Your kids will keep growing and changing, and you, the parents will change too.  You won’t always be on the same page.  But, part of my job is to help you consider what any agreements may mean for the future, to help you decide if they make sense for you.  And,  I’ll work with you to determine how to communicate in the future and handle questions that arise, to give you the best chance of dealing with them effectively and respectfully.

Recognizing that parties may be involved with an enduring conflict, and attending to such conflict, does not require ignoring the more immediate issues.  As Mayer writes:

  • A focus on enduring conflict does not mean that we are not interested in helping people resolve conflicts or achieve agreements on nagging issues.  We have an important contribution to make in this arena, and we ought not to sacrifice this important part of our work to our focus on enduring conflict.  But we also need to understand the role of agreements in enduring conflict.  They memorialize progress that has been achieved and create new and, we hope, more constructive platforms from with to continue the conflict t engagement process.  As we work with disputants on resolving issues in the course of an enduring conflict, we need to keep in mind–and help disputants to understand–that resolving issues does not end an enduring dispute.   (Staying with Conflict:  A Strategic Approach to Ongoing Conflict, pp. 269, 270.)

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When a Conflict Can’t Be Resolved – Part 1 of 2

Mediators have long asked themselves, and one another, why more people don’t engage in mediation.  The process has so many advantages and few drawbacks, that it is difficult to understand why relatively few people are at least willing to try it.

Consider that mediation:

  • is generally a lot quicker than going to court;
  • much less expensive;
  • less adversarial, as parties are helped to listen to and understand one another, and then to work together; as opposed to the polarizing experience of litigation;
  • allows the people having the dispute to make their own decisions, rather than a judge deciding questions for them;
  • is voluntary, meaning that either party can end the process at any time; and,
  • allows for greater creativity in developing responses and solutions to conflict; because the spouses (or other parties) are experts in regard to what they want and need (as opposed to a judge who is a stranger, and one loaded down with a large docket of cases that doesn’t leave him or her time to fully consider many options).

What’s not to like?  What’s the risk?  Why oh why don’t we (mediators) have an overflow of clients? So many clients that we need to refer and turn them away in droves?  Bernard Mayer – mediator, facilitator, trainer, researcher – offers an answer to the question that I had never thoughtfully considered before reading his book, Staying with Conflict:  A Strategic Approach to Ongoing Conflict.

I have long believed that most people don’t try mediation when they are engaged in a conflict largely because:

  1. they don’t have information about what mediation is/how it works, and so “don’t realize what they are missing” (including that the results are binding, if the parties want them to be);
  2. going to court is familiar – think about the hundreds of movies, TV shows and novels involving a courtroom drama; and now see if you can name three dealing with mediation.  While people know that going to court (and perhaps to ‘divorce court’ most of all) can be a bitter and difficult experience, doing so still means dealing with ‘the devil you know’; and,
  3. family and friends are quick to suggest what may be conventional wisdom – hire the meanest, nastiest lawyer you can; feeling vulnerable, and perhaps angry, saddened, tired or confused, people follow that advice, usually not knowing what they are in for, and that there are other methods that may well work for them.

In his book, Mayer discusses another reason:

Perhaps some people don’t believe mediators when we talk about helping to ‘resolve conflicts’ (or to ‘resolve’ disputes).   Alternative dispute resolution may not be credible to people engaged in what Mayer calls ‘enduring conflict’ or ‘long-term conflict’.

Example:  If a mediator told you that s/he could help the parties resolve a crisis in the Middle East (take your pick of which one), you would probably be skeptical, to say the least.  Many of the conflicts are deeply rooted and have been going on for decades or longer.  That anyone is going to resolve (end/finish) such a conflict doesn’t seem realistic.

But what if the mediator said to you that, “I think I can work with the parties to help them manage the conflict.  I don’t have any illusions that I or any mediator can help all of the parties I work with to settle all of the issues for all time.  What I can do is assist them in discussing some of the most pressing and immediate problems; I may be able to help them reach some agreement(s) to improve the situation (such as for a cease fire or prisoner exchange during a war).  As a mediator, I can work with them on choosing ways to keep communication going, and help them to take advantage of opportunities to work together as the conflict continues.”

If the mediator is referring to a crisis in the Middle East, what s/he is proposing – helping the parties to manage the conflict – is still a very tall order.  But it has happened, as hard as that may be to believe with the chaos engulfing the region at present.

Enduring conflict does not only exist on the international level, or have to involve matters of life and death.  Such conflicts may exist between business partners,  teachers and parents working with a special needs child, communities and local governments, environmental groups and industry, two parents over child-care issues or religious upbringing; and of course, in many other situations.

Next time:  What ‘enduring conflict’ may mean for divorcing parents; and for the mediators working with them.

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All blog posts are for information purposes, and should not be considered as legal advice.

 

 

Considering a custody battle? Ask yourself – and your spouse or partner – the following:

Larry Sarezky* is a Connecticut divorce attorney who has put together the following ten questions for his clients.

In my own divorce, my greatest fear was “What will our child go through if we [the parents] fight it out in court?”  Sarezky’s questions articulate many of the potential consequences, and they are serious ones.

If you are a separating or divorcing parent, they are well worth reading and thinking about.

If you are a friend or family member of such a parent, you may want to pass these questions along.

If you are a divorce attorney, you may decide to discuss them with your clients.

  1. Do you want your children to endure months of anxiety and uncertainty as to where they will be living and whether they will have the relationship they want with each of their parents and their siblings?
  2. Do you want your children subjected to interviews by attorneys, mental health professionals and court personnel during which they will be afraid and conflicted, and will feel pressured to be loyal to both their parents?
  3. Do you want your children subjected to the possibility of inquiry by these professionals about the most personal aspects of their lives including their fears and frailties?
  4. Clinical studies have shown that high conflict between parents exposes children to serious psychological harm. Do you want to risk your children developing emotional disorders as a result of your high-conflict custody battle?
  5. Do you want your inability to resolve your differences to serve as a model of parenting for your children?
  6. Do you want intimate details of your life to become a matter of public record?
  7. Do you want a stranger deciding how much you will see your children, and how you will make decisions concerning them?
  8. Do you want a substantial portion of your assets used for fees of attorneys and expert witnesses with no guarantee that you will be happy with the result?
  9. Do you want to give up attention to detail that a negotiated agreement will have but that a judge’s decision will not?
  10. Do you want to engage in costly, time-consuming and rancorous litigation that can make future cooperation between you and your co-parent extremely difficult at best, and the resumption of amicable joint parenting nearly impossible.

* Larry Sarezky is a former Chair of the Connecticut Bar Association’s Family Law Section and an award-winning screenwriter and child advocacy filmmaker.  His articles on divorce have appeared widely. You can learn more about his efforts at:  https://www.facebook.com/ChildCustodyFilm/

Please Like me on facebook and follow me on Twitter

All blog posts are for information purposes, and should not be considered as legal advice.