I think that one very significant advantage of mediation is often left out when discussing the pro’s and con’s of mediation vs. litigation – the positive impact that mediation has on the children and the parents’ ability to co-parent. Mediation creates this situation in a number of ways:
1. “First, do no harm” – I realize that this is borrowed from the medical field, but it definitely applies here. By simply not worsening the relationship between the parents through adversarial litigation, mediation allows the parents to get through the stressful process of getting divorce without turning them into enemy combatants.
I have a list of eleven studies on the impact of divorce on children that I often use with clients who don’t understand and/or minimize the impact that a litigation battle would have on their children. What is amazing is that every one of these studies basically comes to the same conclusion – THE TRAUMATIZING ELEMENT IN DIVORCE IS THE CONFLICT BETWEEN THE PARENTS! Children are generally very resilient and can usually deal with moving out of the house and the other changes that often come with divorce if necessary, but the one thing that they can’t deal with is conflict, especially open conflict in front of them, between the two most important people in their lives. They simply don’t have the developmental capacity to deal with parents saying negative things about the other, with being put in the middle and being put into a ‘loyalty bind’. This parental conflict is what often leads to a child that needs years of therapy in order to just get back to where they were before the divorce (just ask any therapist how many of their adult clients are still trying to work through the childhood divorce issues).
2. Positive Co-parenting – In addition to avoiding the negative of an adversarial litigation process, mediation also actively develops a positive co-parenting relationship. Mediation does this by involving the parties in the decisions regarding their children and by making these decisions in a comprehensive and proactive manner. The mediator facilitates a discussion that proactively addresses dozens of different issues and situations that the parents will inevitably run into at some point during their co-parenting tenure. The point is to not only have these down on paper, but to proactively avoid the parents having to deal with these issues at 6:00pm on a workday when the issue just happens to pop up (which makes it difficult not to respond in a reactive mode).
Another helpful tool in working through parenting issues is to ‘trail-run’ potential solutions during the mediation process. By ‘trail-running’ I mean that the parents try certain options out while we are mediating to see if they will actually work. One typical example is that a stay at home mom doubts that dad will be able to live up to the amount of time he says that he will spend with the children. Rather than arguing over this for an extended period, I’ve often suggested that we try out the timeshare that dad believes he can commit to and see what happens for a month or two. In my experience, this often allows the parents to come to their own resolution based on real-world experiences.
The bottom line is that whether it’s avoiding the negatives of the adversarial litigation process or the positives of developing a constructive co-parenting relationship, mediation allows parents to keep their children out of the middle and to set up a parenting plan that is in the child’s best interest. Which means that mediation, and collaborative divorce as well, is the single most important step a parent can take in protecting their children from the difficulties of divorce.