Mediate, Don't Litigate

Experts agree that divorce's impact on children can be lessened when parents work through conflicts by using mediation instead of tangling as courtroom adversaries.

In the seven years since their divorce, Mark and Mary Abbott (not their real names) have been to court three times battling over child support and parental visitation. Finally, they have agreed on one thing: Facing off as adversaries was a poor way to put a marriage asunder.

Besides costing each party thousands of dollars, the legal process has been emotionally exhausting and time-consuming. And neither parent has been entirely satisfied with the court-ordered resolutions.

"There's got to be a better way," says 43-year-old Abbott. "From now on, if we have a conflict relating to the parenting of our daughter, we're turning to a mediator instead of a judge."

With mediation, two (or more) people who are disputing get together with a neutral third person -- the mediator -- to try to solve their problems, explains author Peter Lovenheim in his book, How to Mediate Your Dispute (Nolo Press, 1996).

The mediator, trained in conflict resolution, helps disputing couples evaluate their goals and options in order to find a solution agreeable to both. Unlike a judge or an arbitrator, the mediator doesn't make decisions.

Many state courts, faced with woefully overloaded dockets, now encourage mediation. Some courts even mandate it.

For example, a few years ago the state of Minnesota passed a law that "divorcing couples cannot bring any issues about their marriage dissolution into court for a court decision until they have tried every other means to resolve them," says Elizabeth B. Johnson, an Austin, Minnesota, clergywoman and counselor. As one of the organizers of Cooperative Solutions, Inc., a network of five family and civil mediation centers, she is enthusiastic about out-of-court alternatives.

"The entire nation has gone way too far with aggression and fighting when there's a disagreement about anything, and labeling the other person as the enemy," Johnson says.

"There's a lot of momentum toward mediation around the country," says William J. Howe III, a Portland attorney and chairman of Oregon's Task Force on Family Law. "In Oregon, the most experienced family-law lawyers just didn't like what the legal process was doing to people, particularly the children."

He was part of a task force that investigated the methods used in Australia, Canada, Denmark, and other countries known for advanced family-law systems. As a result, one of the task force's recommendations was increased use of mediation in cases of divorce involving kids.

Experts agree that divorce's impact on children can be lessened when parents work through conflicts by using mediation instead of tangling as courtroom adversaries.

"Some attorneys and judges involved in the divorce process have sent the message that people don't need to cooperate with each other," Johnson says. "Fathers -- and sometimes mothers -- have been shoved out the door and told that it's OK to walk away from the problems of divorce, including their future responsibilities as parents." Such divisive methods have taken a huge toll on families.

Drawing of side view of man & woman's faces
Successful mediation can avoid hard feelings.

Requiring mediation demonstrates to divorce participants that there are still expectations of the two of them, especially when kids are involved. "You're not really getting rid of this person you're having trouble with," Johnson says.

Ask Mark Abbott. "My ex-wife and I need to talk more than ever," he says. "We need to discuss our 13-year-old daughter's clothes, schoolwork, dental visits, activities, religious education, college plans -- the list goes on and on."

Being cooperative as parents after the end of a marriage is not easy, Howe acknowledges. "But if you take those people through an adversarial system -- where the objective is to tear down the other party -- you destroy any reservoir of trust and good feeling."

Successful mediation, on the other hand, decreases the potential for hard feelings and increases chances that the parties can maintain an ongoing relationship, and that benefits the kids, says Howe.

Marilyn S. McKnight, co-owner with her husband, Stephen K. Erickson, of the 20-year-old Erickson Mediation Institute in Minneapolis, agrees. "The major advantage is that the mediation process has the two parents taking responsibility for the decisions as to how they are going to operate in the future," says McKnight, whose office may handle more than 200 divorce cases a year.

But mediation isn't only for divorcing couples. Disputes between relatives, neighbors, landlords and tenants, debtors and creditors, and employers and employees may also be candidates for mediation.

Trained mediators are increasingly listed in telephone directories under "mediation services" headings, or can be referred by lawyers or counselors. The Academy of Family Mediators, now part of the Association for Conflict Resolution, provides referral listings of qualified mediators. For information, call 202-667-9700, or visit its Web site.

Association for Conflict Resolution

Drawing of hands shaking
Don't think win or lose, think solution.

Paul Wahrhaftig, president of Conflict Resolution Center International, Inc., in Pittsburgh, says basic conflict management can be applied to most everyone's daily life. "All good conflict work is based on the importance of listening," he says. "Listen to the other person, and also listen to yourself."

Wahrhaftig suggests these basic steps in resolving conflicts:

  • Air the problem. Listen to everyone involved. Find out their feelings, what they want, and why. Then, tell your side. Say how you feel, what you want, and why.
  • Clarify the problem. Combine everyone's needs (the whys) into a statement using neutral language and focusing on the future. Start with, "How can we..." For example, "How can we arrange the room so you will have fresh air and my papers will not blow away?"
  • Brainstorm solutions. Together, the disputing parties think up as many solutions as possible to the problem just stated. Postpone criticism of these suggestions until you have listed them all. Finally, eliminate the nonworkable ideas and choose the ones that meet the most needs.
  • Attack problems, not people, says McKnight. There should be no winners and no losers, just solutions. Remember, too, that conflict between human beings is normal and natural -- and sometimes a positive occurrence.

"It helps us recognize our differences and accept differences among people," says McKnight. "We have to have conflict; that's how we grow. If we didn't have conflict, we'd have a very boring world."

It may be time to mediate if you have tried without success to settle the dispute by talking directly with the other side, and if you have enough information about your case to know what you would like the settlement to be, says Peter Lovenheim, author of How to Mediate Your Dispute (Nolo Press, 1996). Mediation may be desirable in cases when:

  • The law cannot provide the remedy you want -- which is often the case in disputes between family members or neighbors.
  • You want to end a problem, not a relationship. Face it, Lovenheim says, filing a lawsuit is almost always a hostile act.
  • Your dispute is no one else's business -- and you want to keep it that way.
  • Minimizing costs are important -- it's almost always less costly than lawyer fees.
  • You want to settle your dispute promptly. Civil cases often take months (or years) to come to trial.
  • You are having difficulty initiating negotiations, or you lack negotiating skills.
  • Mediation will prevent either party from being intimidated or manipulated.

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