In my state, when a couple is getting divorced, they must attend mediation before they can take their case to trial. One view claims that this is an inexpensive way to resolve disputes rather than clogging up the courts with what should be a private matter between two contracting parties. The only exception to this are cases of domestic violence and abuse of children, where there is such a power differential and so much pain that there is simply no fair way to mediate.
For the rest of us. as much as we would like to have the judge in the sky who can make things fair and right, and give us back a shred of our lost dignity, if not our wholeness, we must first go through the painful process of “giving in” on all sorts of items where we really long to be right and vindicated. My experience with divorcing couples who have stopped talking is that each one weaves a web of reasons why they should get what they want out of the divorce. Because the other person has ruined their life in some way. Each has lost things that they cannot get back and they do not want to lose one more thing in the divorce.
Years ago, mediation would take place in a single room, and it was almost impossible to come to any resolution, because the very sight of each other was a trigger for a flood of painful emotions, fear, rage, indignation, and a great desire to remind the other party of how they had failed. You are the one who… (fill in the blank based on what you have been telling yourself since the separation). I sympathize, because we all have the stories we live, the stories we create in which we are the heroines and victims of our own lives. We can all see the painful places where our partners let us down, betrayed us, and even ruined our lives, if it comes to that. And it is much easier to see how others should change or give in.
Some years back now, a wise decision was made that seems to have vastly improved the chances of reaching resolution via mediation. Separate rooms. The parties come to the court at the same time. They are sent to different rooms. There is one mediator who is highly trained, and very calm. She is an absolute expert on keeping parties on track. And a master negotiator. And best of all, neither of the parties are mad at her or disappointed in her. She is absolutely neutral.
As interpreter, I have watched her in action. Parties come in laden with the pain of their shattered lives, their instability, their grief and loss, their fear for an uncertain future. They often see the divorce at that moment as their lifeboat – their last chance to grab onto something, anything, from the wreckage, and survive the disaster that their family life has become. Fighting is the only way they can envision to get the money, the property, the time with the kids, the court protection, so they can still be okay after their lives fell apart.
Each party must come in with their proposed orders for the mediation effort, so every aspect of the parenting plan and other documents has already been considered and thought out ahead of time. The mediator has taken the time to review it all and mark the places where there are differences. Then she starts her long journey from room to room gently nudging the parties out of their respective positions for the good of all.
I remember sitting with a very sweet very hurt woman who just said no, I want everything exactly as I have it on the papers. I will not give in on anything! She then launched into a historical view of her husband’s wrongness, his cruelty, his selfishness and the pain he has caused – he doesn’t deserve anything! And that may be perfectly true. But as the mediator pointed out, this is a no-fault state, and that means the judge is not going to grant property based on who was bad or good as a spouse.
It is a community property state, and that means that no matter who earned money and who took care of the kids and who mowed the lawn and who screwed the neighbor, you are likely to split the property and money fairly close down the middle. Exceptions are not based on bad behavior, but historical earning potential, education, the best interest of the children, health, and such factors. The concept is that when two people are married, they are working together toward common goals. Saving for a house, helping each other through school, and sharing everything. Right up until it falls apart. And then the law still views it as from date of marriage to date of final separation, the fruits of the marriage are a shared harvest.
Back to the mediation. The woman I was with on this occasion finally and somewhat resentfully agreed that hubbie could have one more overnight a week and write the child off on his taxes as a dependent, and the mediator was able to use those two slight movements to start rolling the boulder away from the mouth of the cave of their marriage. She went to the husband’s room and was gone for nearly an hour, after only fifteen minutes with us, so he may have been more of a hard sell. But when she came back, she came in stating she had good news. He was grateful for her offers, and he had now agreed to something she really wanted – that she could make decisions related to education, health care and religion, instead of them as a couple having to come to consensus on these matters every time. He would like to be consulted, but she would have the ultimate word.
Her face lit up at this. It was her child, and she was not the one who had betrayed the family unit! This give-in allowing her to be the formal on-paper “custodial parent” was a vindication. She had more residential time and and now she had the decision-making. She had regained her family of two (out of three original members). She was the new head of household! She sighed with relief several times. She felt empowered, and was able in turn to be generous. It helped that she didn’t hear all the crap he had likely said over the last hour, or the look she would have wanted to wipe off his face with her fist. She just saw the calm, kind, neutral face of the mediator. So the wife ended up giving in on several matters of importance to the husband that were worth a lot of money, including signing off on a home he had owned before and during the marriage.
He in turn was happy to keep his house and not have to sell it. He had bought it as a young bachelor and struggled to keep it during periods of unemployment, and he had hated the idea of having to sell it and start over. It made him feel safer and more settled to keep this house. He came around about the higher child support figure and let it be set to include his overtime based on a yearly average. In the beginning, he had been adamant that he did not have to work over 40 hours a week, but now that he wouldn’t have to come up with a chunk of money to pay her, and he had the freedom to sell his home if he ended up getting into trouble later, he also felt safer in agreeing to pay more child support.
After five or six more trips, the mediator started coming back with kind greetings from the other party. “Your husband says he is happy to pay full support. He still plans on helping out more than that, buying clothes and sports equipment and such, whenever he can. He would like you to exchange tax returns every year so you can see if there is a big change, because he isn’t guaranteed the overtime. But for now, he agrees to just take his annual income for last year and divide it by twelve for current child support. He is really grateful for your cooperation. You are going to get through this!”
Presumably she was also going to the other room with encouraging talk and acknowledgement of generosity and willingness to cooperate. She is expert at reframing the issues so that the parties can come to resolution. I actually heard her tell one very upset party at another mediation a fairly good argument for why she was not going to listen to anything about the failed marriage.
“Your marriage is over. That is why you are getting divorced. So nothing that happened in it is part of this process. The marriage and all its problems are behind you now. You are moving into a new status as co-parents. Think of yourselves as partners in a new business. The business is to raise your child successfully. The more you can let go of the past, the happier your child will be. Let’s focus on the future for your children’s sake”.
In cases where there is too much resentment and entrenched anger, she also reminds the parties of a very true fact. The judge does not know you – the judge does not know your children. The judge has no way to know who contributed more to the marriage, and who deserves what. That is not even relevant in the law. So if you two cannot decide which days your child will be where, and who is going to spend a holiday or have a vacation, or how to distribute your property, the judge will have to make a fairly random decision based on very limited information, and you will both have to live with that for years to come. It is up to you.
If you are more interested in stopping your partner from getting what she wants than in getting more of what you want, then go to trial. Otherwise, give until it hurts and you can begin to heal. And the thousands of dollars you each save on lawyers will remain in the two households that your children now call home. Your children will see that you care enough about them to get along with their other parent. And that is a treasure worth talking about. Good luck.