Abstract
How is it that separating and divorcing couples are able to resolve disputes in mediation that they are unable to resolve in traditional adversarial divorce proceedings? What is it about mediation, and the setting in which mediation takes place, that facilitates this? While there are obviously a number of factors, two stand out. The first is the relationship that develops between the mediator and the couple and, more importantly, the trust that they come to repose in him. The second is found in the context in which mediation takes place.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
Notes
That context is not simply critical to the issues that separating and divorcing couples must resolve, and that it is as important a factor in other areas of human understanding as well, was testified to by biologist Richard Lewontin in the closing page of his book, The Genetic Basis of Evolutionary Change, New York, NY: Columbia University Press, 1974). As he said, “The fitness of a single locus ripped from its interactive context is about as relevant to real problems of evolutionary genetics as the study of the psychology of individuals isolated from their social context is to an understanding of man’s sociopolitical evolution. In both cases context and interaction are not simply second-order effects to be superimposed on a primary monadic analysis. Context and interaction are of the essence.”
While it is not generally appreciated, one of the most important benefits of divorce mediation has been to correct this. To be sure, the husband may be a problem because he does not want a divorce or simply because he views the situation differently than the wife does. but that is very different from his being a problem for her because he has become her adversary. One of the great virtues of mediation is that it keeps the problem in the first sense from becoming a problem in the second.
It is perhaps understandable, and therefore excusable, that the critics of divorce mediation make this fundamental mistake. It is less understandable that its advocates do also.
There is another factor that unfortunately adds to this. If the wife—and this is equally true of the husband— should decide to retain her attorney’s services, he is going to ask her for a retainer. If he specializes in matrimonial matters, and if the wife lives in a large metropolitan area, that retainer will probably be very substantial. The attorney in question cannot justify a retainer of this magnitude—which, after all, may only be a small portion of his actual fee—by presenting the matter to the wife as one that he and her husband’s attorney will be able to sit down and resolve in a relatively short period of time. On the contrary, and regardless of how responsible he may be, he cannot help but send out signals to her that what they are talking about is both a large and long undertaking. To part the wife from her money, less responsible attorneys may very consciously emphasize this fact. They may then even go out and earn their fee by creating the very situation they have warned her about. In either event, it is almost impossible for the wife to leave without having her fears reinforced.
In their attempt to sing the praises of adversarial proceedings, and to answer their critics, divorce lawyers have generally muted this fact. Instead, they have emphasized the fact that probably no more than 10% of the cases that they handle result in a trial, let alone are resolved by a judge’s decision. What they neglect to mention, however, is that in the overwhelming majority of instances the context in which their negotiations take place is such that it is impossible for the parties to conclude an agreement between themselves unless and until they have first resorted to litigation. Transposed over into the world of diplomacy, this would be as if a statesman were to claim that diplomacy had been successful in resolving all of the disputes between nations in the 20th century, with the exceptions of the first and second world wars, simply neglecting to count the hundreds and thousands of other instances of armed conflict as representing a breakdown in diplomatic efforts. The importance of litigation (as opposed to negotiations) in the resolution of the dispute between the parties, and as a weapon in the adversarial process, is belied by another fact that divorce lawyers generally do not mention, and that is that in a very large percentage of cases the very first thing that the attorney for one of the parties will do will be to institute suit, and this even before there has been any attempt at negotiations, let alone a breakdown in those negotiations. In some instances, this is justified in terms of legitimate adversarial concerns. In far too many instances, however, litigation is unthinkingly instituted simply as a matter of course, or because the attorney in question wants to negotiate from strength and believes that the institution of an action is a demonstration of that strength. In some instances it is instituted simply to prevent the client from turning back and to bind the client to the attorney and his fee.
It is not generally appreciated how much license each of the parties is given in adversarial practice by reason of the fact that they have someone else to do the accounting for them. The wife calls her attorney complaining about certain misconduct on her husband’s part. He in turn calls the husband’s attorney to make complaint. (This is the famous telephone game that matrimonial lawyers spend their lives playing.) Since the husband’s attorney is generally ignorant of the situation, save for what the wife’s attorney has just told him, all that he can do is tell the wife’s attorney that he will get in touch with his client and then get back to him. What the wife’s attorney is looking for is restitution, perhaps a solution to the problem, or at least an apology. He may even want and expect the husband’s attorney to reprimand his client for his misconduct. Unfortunately, the husband’s attorney was not hired by the husband to reprimand him, as his attorney full well knows. Thus, the husband’s attorney will simply relate to him what he has been told as politely as he can and wait to hear what the husband has to say. In most instances, the story that he will get from the husband will be so at variance with the one that he has heard from the wife’s attorney that he will wonder whether or not they are talking about the same case. Just as often, he will hear a counter complaint from the husband that he will be told to take back to the wife’s attorney. Even if the husband is at fault, he will make some lame excuse and expect his attorney to put the best face on it that he can, which, after all, is what his attorney is being paid to do. And so his attorney will report back to the wife’s lawyer that her husband denies the allegations, that he complains instead that it was the wife who was guilty of a breach of conduct, or that even if the husband may have been derelict in some respect, it was excusable or totally beyond his control. At times, and if he is more responsible, he may not attempt to give excuses for the husband that he does not deserve and will instead simply throw up his hands and acknowledge to the wife’s lawyer that he has no control over his client. In any event, the husband will have been successful in using his attorney as a buffer between himself and his wife and in not having had to account for his actions.
Husbands and wives engaged in adversarial divorce proceedings are not generally aware of this. From their standpoint, what they have done has been to engage an attorney whose primary responsibility is to attempt to negotiate an agreement for them. However, in the overwhelming majority of instances, if they were to look at a record of their attorney’s time sheets, they would be surprised to find that probably no more than 25% of his time has been devoted either to the preparation or conduct of these negotiations—and that would include, as well, the time that he has spent going over the husband’s books and records, preparing a budget of the wife’s expenses, etc. Rather, the bulk of his time will have been spent in the war of paper that attorneys forever engage in, but which has so little to do with the ultimate outcome of the case.
This is not generally appreciated. It is a fact nevertheless. Adversarial divorce proceedings represent a kind of institutionalized madness. Like war itself, each of the parties is required to engage in what would otherwise be considered irrational conduct. To get them to do this, and to accept it as appropriate, it is first necessary to give it official sanction. The healthier that a person is, however, the more he realizes just how crazy what he is involved in is, and just how much damage it does to him and to everyone around him. To end this madness, he is willing to make concessions and compromises. In fact, his ability and willingness to do this is a direct function of his emotional health. For the less healthy elements of society, however, and as unpleasant as it may be, that madness nevertheless serves a purpose. For them, it is more important to be right and to get even than it is to get done and get on. And this is so regardless of the injury that is caused to their spouse, to their children, and even to themselves in the process. Thus, they will persist to the bitter end, for as they see it what they are engaged in is a holy crusade, and whatever the costs or sacrifices may be, they are never too great. Again, their ability and willingness to do this is a direct function of their emotional ill health.
This exaggeration takes many forms. Thus, in traditional divorce proceedings, the year of the couple’s divorce will invariably be the husband’s worst year financially, and future prospects will look no better. Similarly, the wife’s ability to contribute toward her own support will be literally nonexistent, and it is almost a cardinal rule in adversarial proceedings that a wife should never take a job while the proceedings are pending and thereby acknowledge her ability to earn income, let alone the fact that her children do not need her constant care and attention 24 hours a day. These claims are literally never made in mediation, as the parties do not feel the need to protect themselves with such counterproductive exaggerations.
In actual fact, however, these clues are more often found by questioning the wife herself, rather than in examining her husband. An appreciation of this fact is very important. If it is the wife, and not the husband, who provides most of the important information, she can provide it just as well in mediation as she can in an adversarial proceeding. Thus, just as she would not permit her husband to submit an affidavit in an adversarial proceeding suggesting that his income is limited to that reported on his income tax return, nor would she sit by in mediation and permit him to make that same statement.
This is not to suggest that the couple will necessarily believe that they are mediating in a common cause. It is not even to suggest that the mediator will be successful in causing them to so view the enterprise. It is simply to suggest that this is the attitude that the mediator should project in all his dealings with the couple.
This is not to suggest that all women’s groups are in opposition to mediation or that there is even unanimity of opinion within the same group. In this respect see Divorce Mediation: A Guide for Women written by Judith I. Avner and Susan Herman for the NOW Legal Defense and Education Fund.
This point was expressed by Lillian Kozak, Chair of the Domestic Relations Law Task Force of the New York State National Organization for Women (NOW) in presenting the views of that organization before the Judiciary Committee of the New York State Assembly in opposition to the proposed bill providing for the mediation of child custody disputes. She concluded her presentation by stating; My contention has long been that there is not so much wrong with the law as with the practice of it. I can match horror stories of the legal system with those of any mediator. But—our efforts have been and are to assist in changing that system. This committee is certainly aware of our constant efforts to obtain fairer, more professional practice. Should this proposed bill pass, there will be two bureaucracies to monitor, two professions to educate, defects in each to correct. There is much to be done. Let us improve the legal system so that it lives up to the integrity and offers the protection which the citizenry are taught to expect and for which the public may gain some respect. The courts and the search for protection of rights and justice belong to the public as well as to Texaco, IBM and General Motors.
In this regard it is important to keep in mind that there will never be a consensus between men and women (or, for that matter, between those who have worked to build up professional practices and those who have not, between those who have stayed home to raise a family and those who have devoted their energies to supporting it, etc.) as to whether or not those rules are fair, and if a proper resolution of the issues that separating and divorcing couples face are seen to depend upon correcting those rules so that they are fair, then divorce is condemned to be a never ending struggle between the various competing groups to change and rechange those rules to their liking (in their favor).
Rights and permissions
Copyright information
© 1990 Springer Science+Business Media New York
About this chapter
Cite this chapter
Marlow, L., Sauber, S.R. (1990). Context. In: The Handbook of Divorce Mediation. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-2495-7_7
Download citation
DOI: https://doi.org/10.1007/978-1-4899-2495-7_7
Publisher Name: Springer, Boston, MA
Print ISBN: 978-1-4899-2497-1
Online ISBN: 978-1-4899-2495-7
eBook Packages: Springer Book Archive