How to maintain critical communication as you divorce

Given the importance of encouraging dialogue between couples when it comes to resolving child arrangements and financial matters, mediation is a valuable service and it is certainly underutilized in Rhode Island.

Some states require mediation for divorcing couples or couples seeking child custody arrangements.  Unfortunately, there is low public awareness of the value of private divorce mediation. People instinctively react by hiring an attorney used by a family member or friend in order to “get me what I want” in the divorce or to punish the other party. 

Second only to the death of a loved one, divorce is highly emotional and traumatic. Parties feel anger, disbelief, a sense of loss and a sense of fault. 

The legal system is an adversarial system, and cases treated in that manner. Emotions are not taken into account.  Divorcing parties are susceptible to having their egos encouraged to get the upper hand.  Often, the adversarial process encourages reduced communication between parties to allow the lawyers to do the talking.  Research has determined that reduced communication and an adversarial atmosphere is usually detrimental to children.

Different kinds of mediation are practiced, including facilitative, transformative, and evaluative mediation.  Further, the Rhode Island Family Court has a mediation program.

In facilitative mediation,  begun in the 1960’s, a mediator sets out a process to help parties in reaching mutually agreeable resolutions by asking parties questions to search for underlying points of view and underlying interests to find and analyze options for resolution.  No recommendations are made to the parties.  Almost all of the work is completed in joint sessions with both parties present, though occasional caucuses occur. 

Evaluative mediation is a process modeled on settlement conferences held by judges.  The mediator, in separate caucuses with each party, points out the strengths and weaknesses of each party’s position (not interests) and predicts what a judge or a jury might do.  The mediator may make informal recommendations of settlement terms.   The evaluative mediator is more concerned with the legal rights of each party and not with the interests and needs of the parties.  This process is not about finding a resolution that might be a “win-win” that meets the needs and wants of both parties.  It is about finding results based upon standards.  As an example, discussions about children’s needs vis-a-vis each parent are less important.  There is no emphasis in developing communication between the parties.  This process is successfully used in contract disputes, personal injury disputes and labor disputes.

Transformative mediation, which Steven Hirsch, Esq. uses with family issues, employs the newest concepts of the three types.  It is based upon on the value of empowerment of each party and the recognition by each party of the other’s needs, interests, values and points of view.  The parties determine which issues are discussed in the order that they prefer.  Parties speak about their children and the children’s interests, and share their financial statements and budgets.  Both parties review all financial statements and budgets, allowing them to discuss what each needs and often what expenses are unnecessary.  The potential of this type of mediation is to allow each party to understand his/her views and needs and the other party’s views and needs in order to find a solution that encompasses as many of the needs as possible.  From years of experience, I know that people need to say certain things to the other in front of a third party before an agreement can be entered; this is only found in transformative mediation.  It is similar to facilitative mediation by encouraging parties to transform their failing relationship into a new cooperative relationship for the benefit of the parties’ children, no matter how old they are.  Agreements made by the parties through this mediation incorporate the parties’ knowledge of their children, their finances, and their financial needs; these agreements usually last longer than those imposed by third parties. 

Due to time constraints, the Rhode Island Family Court’s mediation unit is more likely to use evaluative mediation, informing mediating parties what the court is likely to do if they cannot reach an agreement.  Just knowing what a court is likely to do often robs the parties of creating a tailor-made agreement for their specific needs. 

Contact Steve at 401-352-1000 to schedule an appointment to determine if you feel comfortable working with Steve to attain a good resolution to your dispute.