This article is the second of a four-part “Toolbox” series. Each of these will briefly outline one of the four major approaches to handling a divorce, and how the Consilium process integrates the approach into its model.
I first learned to mediate while in I was in law school. I was trained with The Children’s Hearing Project in Cambridge, Massachusetts by a man named Patrick Phear, who had emigrated to the U.S. from South Africa and developed and was then teaching a new style of co-mediation. All mediations occurred with two mediators present, which provided a fabulous way for me, as a young mediator, to learn. Therefore, while in school I was learning the rules of the Courtroom, at the Children’s Hearing Project (CHP) I was simultaneously learning the art of negotiation.
AT CHP our clients were primarily teenagers and their parents, and many of their issues involved cultural differences between immigrant parents and first generation American children. The typical tensions between adolescents and their parents were laced with cultural misunderstandings and language dependencies of parents upon their children. I found myself being young enough to understand the adolescents and old enough to understand the parents. I liked being the fulcrum in the sea-saw of the conflict, and I found it gratifying to help them find common ground.
When I began practicing family law, mediation seemed like a natural fit for the inter-familial discord that was so often a part of that terrain. The model that is most often used by divorcing partners is that in which the two partners, along with the mediator, a neutral third party whose job is to guide them both toward a mutual understanding, work to achieve a Settlement Agreement. Mediation can be effective so long as both partners willingly disclose all of their financial holdings, neither party feels controlled or diminished by the other, and they are able to discuss the issues necessary to restructure their family. For some people, a confidential mediation can feel more comfortable than a public courtroom where grievances can sometimes be aired in such a way that the environment can feel hostile, and even escalate underlying points of discontent.
However despite its promise, there are times when mediation simply isn’t possible. If substance abuse, mental illness, emotional issues (rage or depression for instance), a history of physical abuse, or anything else makes one or both parties feel unsafe being in the room together, mediation is not an appropriate choice.
Consilium ® is built upon the foundation of understanding yourself and the other people in your family, so that if mediation is appropriate it can be incorporated into the restructuring of your family. It does not have to be an either/or alternative. For example, you may begin with traditional litigation, and then mediate all of the issues revolving around your children’s care and upbringing.
It is important to remember that even when people choose to mediate all or a part of their divorce, having legal counsel “in the wings” is important. It is inadvisable to attempt to resolve your family’s legal rights and responsibilities without a clear understanding of the law. Doing so can create future regrets and misunderstandings.