Archive for January, 2015

Are You Really Mediating?

As mediators we have a hard time calling the overall process “divorce.” That is the technical term for what is happening. The term means separation or severance and the root of the word is “to divert.”

But what is actually happening is the restructuring and reformation of a family, even if there are no children involved. As couples separate, they become aware of all the connections they have in the world from combined family members, shared acquaintances that are made during the marriage to social activities, social media and places of worship.

When divorce becomes a consideration, couples also become aware of their tangible and intangible assets – those digital elements from the cyber world in which we participate. For tangible assets it is straightforward to identify and split the pension account, but what do you do with a domain name? Who owns the digital property that was purchased? Apple isn’t going to give you two copies of a movie because you are separating.

With all this being put into turmoil it is easy to take a hard position and to look at mediation as a place to enter into court-styled settlement agreements. Before entering mediation people may look at their positions and make calculations about the other person and their position. Then they look at the law with the help of an attorney and seek to use a neutral third party to bring their position to the table. Each person is seeking to be “right” or to convince the mediator.

From our experience, such an approach only undermines what a couple may really be working towards – a peaceful separation. If pressure tactics are used the result can be devastating to the family even though it may be unintended. When these tactics are used, and one person or the other wants emotional support, do they force people to take sides? Does the entire family and social structure need to be torn apart?

Most importantly if children are involved, they certainly will feel this hostility. Even if there are no loud overtones, there are still feelings of anguish and deep hurt all around the community to which the family belongs.

All those that are part of the process, including the full complement of family and acquaintances, need to step back and allow mediation to work. It creates a simple forum for safe discussion and disclosure. Within mediation there is no “advantage” as the power between the parties is monitored and balanced. It is an environment in which seeking to win and take advantage over the other person is disallowed.

The goal for successful mediation is reaching agreements that the couple and family can actually live with and are committed to – something they crafted on their own without court pressure or scrutiny.

 

By: Armand & Robbin D’Alo

Is There A Best Option for Divorce?

This question is posed by most people that we talk to. The answer is simply no. Each process has its own qualities that are useful in some context. We will try to explain a bit about each.

Do-It-Yourself: Divorce sounds simple, and for those in short marriages and no children, it may just be as easy as saying goodbye. There are services like LegalZoom and help desks at the county courthouse that can assist in completing the paperwork.

The problem here is that if no one seeks legal advice it may be possible for one or the other to later come back and argue that they did not understand what they were doing. What if there were was a house owned by one person before marriage? Then marital funds were used to maintain or to add to it. How do you sort this out? How much goes to which person? The other question is if that amount used for the property is even large enough to argue over. By the time you hire attorneys and go through the motions, a couple thousand dollars can be easily spent. In the mediation and collaborative processes things like this are identified and you become empowered to make an informed choice.

Mediation: Here you have a neutral person knowledgeable of the issues and process. The couple comes in and is responsible for having an open conversation about what they want. The mediator is there to offer information and maintain a balance of power in the room – not letting one person dominate the other.

In mediation it is a good idea to have a consulting attorney that is friendly to the mediation process. That person can offer additional perspective that can help you reach an agreement that is informed and can help protect everyone’s rights in the process.

It is also helpful to have a good therapist that helps you remain resourceful. While the mediator can help with the process in the room, a therapist will help with the process of life beyond that room.

Collaborative: Similar to mediation, this process involves a team of 3 to 6 or 7 professionals. Each spouse has an attorney. There is a neutral financial person in the room and there may be a mental health coach for each spouse and one for the children. There may be others used for specific evaluations in the process, as needed.

In collaboration the entire team agrees that they will never go to court. The attorneys are trained to help the clients actively negotiate an agreement. The financial neutral is responsible to be a repository for all information and to prepare materials to illustrate options. In this process, the professional team supports the couple and family with active participation while allowing the couple to control the process. It is like have a set of skilled mechanics in the room while you orchestrate their work (but they offer guidance along the way).

Litigation: Here is the adversarial process. When people refuse to talk or even refuse to acknowledge that anything is going on, a divorce attorney can file the appropriate petitions with the court to move the process along. When agreement cannot be reached, the judge hearing the matter will make a ruling and that will be the result the couple needs to live by.

There is no correct method. We tend to favor mediation and collaborative work because couples retain the most control over their process while being supported by professionals.

 

By Armand & Robbin D’Alo