Marriage is a choice. People choose who they marry, when to marry, where to marry, whether to buy a house together, or whether to move across town or the country. Couples choose where their children will go to school and whether to sign them up for soccer or piano. Marriage involves all of these exciting choices. Many marriages may last several years before ending, so there is plenty of time to make these decisions.
On the other hand, divorce does not offer families the same courtesy. A divorce is a court order – that is, a legal directive to end a previously intimate relationship. The law tells you whether you must get divorced (even if you don't want to.) The law tells you where you need to get divorced (called jurisdiction or venue.) The law tells you when you get divorced and what needs to be decided. The law may limit your access to your children.
Divorce can undermine self-determination. Ultimately, the big question for many families is how to reclaim the ability to control decisions – to self-determine the outcome – even during the tumult and emotional turbidity of divorce or separation? This is where Mediation and Collaborative Divorce are so necessary. The hallmark of both processes is self-determination and allowing your family to control the outcome.
During a divorce, the clients must decide about separating property and debts, spousal support, child support, and parenting time for children. Each of these important topics requires multiple minor decisions, such as breaking up the numerous retirement accounts, whether one client should keep the family home until the children graduate high school, or when the children will live with one parent or the other.
The Mediator or Collaborative Team will work with the clients to identify the issues and then give the clients the ability to make the many decisions that need to be made. Unlike getting married, where the choices usually do not happen all at once, in a divorce, most people want to or need to make all of these tough decisions as quickly as possible. Unfortunately, this may sometimes mean that one client or the other is not ready to make the decisions and may feel as if they are being forced into decisions.
Mediators and the collaborative team have several tools in their toolbox to ensure that both clients can self-determine their own decisions. One tool that mediators or the collaborative team can use is separate sessions. I believe that facilitative mediation works best when the clients talk directly to each other. But, it may be necessary to separate the clients when one client is not feeling sufficiently empowered to make decisions about their future. For example, a client may agree to whatever proposal is put in front of them by the other client. If that occurs, the mediators or team should slow the process down and use separate sessions to ensure that the client feels empowered to make decisions.
A second tool that mediators of the collaborative team may use is coaching both clients individually before the process. Two of my mediation idols, Woody Mosten and Tsipora Dimant, both of whom are well-respected family law mediators and instructors, recommends that family mediations begin with separate sessions to allow the mediator to build rapport, build a plan with that that client, and determine where the client may need assistance during the mediation. Coaching during these initial premediation sessions helps the client determine how to approach issues and feel more confident in their ability to self-determine the outcome.
Coaching is also used by Collaborative teams before, during, and after joint sessions. The coach could be a Collaboratively trained Divorce Coach or Collaboratively trained attorney who can work with the clients individually or during joint sessions to address the client's feeling that they are not sufficiently competent to be self-determinative.
Finally, a third tool that the mediator or team may use is to try to minimize any knowledge imbalance between the clients by using specialized experts. For example, there are often discrepancies associated with the client's understanding of financial issues. For the clients to effectively self-determine, the balance of power must be equalized to the extent possible. This is where a financial neutral can be helpful. The Financial neutral can go through the family accounts and provide necessary information both clients, hopefully equalizing the balance of power.
Clients have lots of time to make decisions during the marriage. Still, the decisions during the divorce may feel rushed and based on emotion. Self-determination may be lost. The wonderful benefit of mediation and collaborative divorce is that both allow clients to slow down the process and obtain as much information as possible to make appropriate decisions for the entire family.