Mediation: An Alternative to Adversarial Lawyers
By Jason Roth (Registered Psychologist)

I received an accolade about twenty years ago that still causes me to smile with pride. While testifying during a child custody matter, I was declared a “hostile witness” by lawyers from both sides!! Talk about losing sight of the concept The Best Interests of the Child!! I felt at the time that it was the ultimate compliment that could be given to a psychologist and was an acknowledgement that I was truly doing my job. It was also one of the most distasteful experiences that I have had in my 30-years of Counseling. I have been mediating separation agreements ever since.

Sometimes, despite the best interest of parents and professionals, separation is inevitable. By the time that couples come to Counseling, the toxicity of poisoned interactions and ongoing conflicts makes reconciliation impossible. At that point, the only question is “How do we separate”?

The ideal scenario would find two lawyers who would be able to help their respective clients recognize that, “A failed marriage is the responsibility of both individuals and that a fair and honest resolution of outstanding issues would benefit everyone”. When children are involved, the lawyers would remind their clients “taking a long-term perspective is necessary”. They would then help their clients to work toward an agreement that focuses on The Best Interests of the Child. They would hopefully allow their clients to facilitate a fair and equitable settlement with the minimal amount of damage to either party. Each would thus be able to move more quickly toward healing and the rebuilding of their lives.

Despite there being an increasing number of family lawyers who embrace this approach, this unfortunately is not what happens in the majority of divorces. More often, each individual retains his or her own lawyer and then proceeds to engage in an adversarial battle that reduces if not eliminates any vestige of “goodwill”. Ironically, with the exception of “contesting custody”, much of who did what to whom is irrelevant in the final legal determination. Clearly defined parameters regarding the division of matrimonial assets and the level of child support payments eliminate many of the grounds for battle. This however does not stop adversarial-inclined couples. Responding to the suggestions of family and friends, and often with the encouragement from their lawyers, the couple engage in a senseless battle “to seek justice” at the expense of their soon-to-be former-spouse. All-too-often, despite it being psychologically, emotionally damaging and financially expensive, it is nevertheless part of the “rite of passage” for divorcing couples.

Unfortunate and unnecessary as it is for childless couples, the consequences of such battles are exponentially worse for those who have children. Long after the passion, outrage, hurt, fear and sadness from the failed marriage has faded, these parents will need to cooperatively interact with one another. The anger and outrage – byproducts of the acrimonious divorce, will linger and be felt by their children. There is a greater likelihood of non-compliance and an increased possibility that the non-custodial parent will diminish his/her involvement with the child. No one “wins” in this scenario.

A far healthier alternative is for separating couples to mutually engage a mediator who can assist the couple to arrive at a settlement that is fair to all. When only one party “wins”, everyone “loses”. Knowing the parameters of the law, this mediator can facilitate a process that avoids the predictable traps that couples fall in and allows a speedy resolution where everyone’s interests and concerns are respected and acted-on.

When I am involved in mediating separation agreements, I usually begin by listening to both parties in order to understand what needs to be addressed. Often, there are already significant areas of agreement. I may feel it helpful to meet individually with each in order to better elicit the true feelings and concerns. Sometimes progress is best achieved by working with the couple together; other times it is better to alternate from one to the other until the foundation of an agreement has been reached. By defining the process to look at “needs” instead of getting hooked on conflicting “solutions”, we can usually build creative agreements that all parties feel they can live with.

When the financial situation is complex, I consult with an accountant who is able to offer a variety of solutions that speaks to the interests both parties in a manner that minimizes negative tax implications to each.

Once agreement on all points is achieved, a family lawyer retained by me converts the terms into a legal text that is then reviewed in my office by both parties. Each individual then consults with his or her lawyer (who was chosen from a list of lawyers who are sympathetic to the concept of “mediated settlements”). This “independent legal advice” is necessary before the agreement is signed and becomes legally binding.

The result of this mediated process is a separation agreement that is less emotionally and financially costly to everyone. Other than in situations where there is a huge imbalance in psychological power or an unwillingness by one or both individuals to cooperate, separating couples would do well to consider the merits of mediation.

Jason Roth is the Principal of Roth Associates in Psychology. His group of registered psychologists and social workers offer Counseling assistance to individuals, couples and families in their offices in Halifax and Dartmouth. Jason may be reached at Roth Associates in Psychology at (902) 454-6166.