The Mediation Alternative to the Adversarial Court System.
THE PROCESS OF MEDIATION
Mediation is initially a unilateral choice made by the parties to mutually agree to weave together their different perspectives to create a lasting solution. Mediators must set the tone for the process- a fair process that includes sharing information and empowering participants. Often the environment of equality found in the mediation process is enough to loosen an individual’s position, if they feel they are finally being “heard” for the first time. Then the individual may make a new choice to either suspend their belief or give up the right to blame the other party. In mediation we do not attempt to find out who is right or wrong in the relationship; only answer the question of how we can proceed with the situation as is and what decisions can be rendered now and which will be left for later. For some, mediation also serves the purpose of giving “completion” to the relationship and allowing a respectful reflection of their personal process during the marriage. The power of resolving the conflicts mutually and creating a new relationship is always beneficial, even when painful. The court need actively be involved only where the problem cannot be resolved by such less formal process.
FOCUS OF MEDIATION
The nature of each mediation will dictate the need for individualized care requiring a personalized approach. First and foremost, flexibility and pacing are vital to finding the way. Generally, the mediators encourage interaction between the spouses, assist in the identification of areas of disagreement, as well as agreement, and then work to bring the parties to a resolution; a resolution reached and defined by the parties themselves. The art of mediation is gentleness sprinkled with lots of flexibility and care. We have found that often one or both parties may garner essential emotional support from a concurrent association with a psychotherapist, as that connection tends to diminish the trauma of divorce.
THE WIN OR LOSE COMPETITION
Ultimately, the adversarial system pits parents against parents, as children are placed in the middle of a battle between parents, as if children were a piece of furniture their owners are fighting over. This is obviously antithetical to the best interests of a child. The adversary process is essentially a win or lose competition. Each party attempts to prove to the court why he or she should be the winner and/or the other, the loser. If the winning prize is money or property, the concerns of the sought-after object need not be considered. However, where the sought-after object is a child the dispute is of a totally different nature. While this difference is widely recognized, the conflicts over the best interest of the child continue to take place in a win or lose framework. The adversarial framework dominates because attorneys, no matter how sophisticated their understanding of total family dynamics, can represent only one of two opposing points of view. To achieve victory in the family custody situation, parents sometimes make extreme allegations about their spouses, such as charging the other with sexual abuse of the child. Adversary proceedings sharpen and deepen the parents' differences, and once litigation is initiated; compromise, flexibility, and cooperation are often devalued or impossible to recapture. Thus, the child may be treated like property while parents clog the courts with bitter fights over money, assets, and support. The combative atmosphere makes it more difficult for divorcing couples to reach a settlement and develop a cooperative relationship once the divorce is final.
By Richard Paris, Esq., family law attorney and mediator
rplaw@comcast.net
415-209-6152
