The Role of Mediators in Pre-Divorce Counseling
By Kathy Keith
Several months ago I caught a Dr. Phil episode dealing with people describing themselves as competitive to the extreme in their careers and personal relationships. Naturally, their significant others complained. Yet to a person, they stated that they couldn’t help themselves, evidencing what my teens call “The Deny, Distract, and Deflect Shuffle.” So, a grinning Dr. Phil urged them to compete for mental health.
As a psych-based mediator, I believe the divorce industry guides a process that is often dissonant with the pursuit of mental health. How would things be different, I’ve wondered, if a couple knew how to seek divorce while also protecting mental health? Using Alternative Dispute Resolution (ADR) Third Party Neutrals (TPNs) in a variety of ways might be conducive to mental health. Here are a few suggestions.
- Strategic Overview: While TPNs will not teach or advise law, they do have a great deal of wisdom that the public can use. Therefore, a couple could consult a TPN initially to review professional services (attorneys, financial planners, mediators, law and mediation centers, appraisers, etc.), approximate costs, various approaches (full representation, pro se, mediation, settlement conferences, collaborative law) and information resources (library, bookstore, internet) available to consumers. With a broad review from a neutral, a couple can then decide the most cost-effective way for them to proceed. Besides information, the TPN would be modeling a cooperative tone that might sustain the couple as they move forward.
- Negotiated Divorce Process: It is a good bet that a divorce-bound couple has great difficulty communicating. When each takes their discontent to professional adversaries, the process can become hostile quickly. It would be well worth the money and time for a couple to negotiate the divorce process with the help of a TPN. They could help the couple understand the use of collaborative lawyers as well as represented lawyers; mediation centers or private practice mediators; who files? whether they need one or two financial advisors; the need to make tax decisions; how they will advise children; to what degree they will involve mutual friends and in-laws, church continuity, separation practicalities, health insurance, and other matters. Individual couples need to discuss in the context of their unique divorce.
- Three Session Mediation of Divorce Content: Disassembling a marriage is difficult for most couples. Mental health professionals advise people to take more time during stress – time to ponder, listen, phrase carefully, and rest. Though counsel and some mediators may prefer the one-session standard, it is not a customer service model. Besides being grueling, one-session mediations foster caucus, giving in, fatigue-based decisions, errors, and last minute demands, all hallmarks of positional bargaining. An agreement may emerge, but resentment smolders. Too often, the single-session approach feeds modification filings that will consume the court’s time. Instead of trimming the docket, the very opposite occurs.
- Post-divorce adjustments: When couples experience the success mediation offers, there is usually universal agreement to return to mediation (same mediator or not) when changes in the agreement need to be made. Couples that endured a highly contentious divorce often become fearful of the legal system and postpone changing agreements even when necessary. Sometimes new spouses wind up becoming the go-betweens, putting dual-role stress on them and making the second marriage vulnerable. A TPN could provide relief to this type of family system with brief assistance focused on changes to pre-existing decrees (incorporating attorneys as needed).
- Blended Family Agreements: It is not unusual for blended families to seek counseling either before combining living arrangements or soon after. A TPN could fill the gap in which counseling leaves off by helping step-families develop written agreements about living conditions, parenting, finances, curfews, chores, etc. On the other end of the age continuum, demographers forecast that more middle-aged marrieds will incorporate seniors into their households. With two sets of values about running a household, a TPN could help these families make agreements about living conditions, shared finances, transportation, driving privileges, and more to prevent friction and alleviate the tension on the spouse in the middle.
In this era of turf protection, I want to be clear. I’m not suggesting that TPNs should practice either law or therapy without a license. I am saying that consumers often need help in the great between, when counselors end and attorneys begin. Skilled TPNs, working within their expertise, can make a huge positive difference. I think families deserve it.
Kathy Keith has an M.A. in conflict management, and applied psychology doctorate. She consults with individuals and organizations about consensus building processes including mediation. Kathy is also Treasurer of Association for Conflict Resolution (ACR) Dallas Chapter.
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