I personally have known both worlds – that of the traditional lawyer and, in more recent years, that of the mediation attorney. And I much prefer the results I am able to obtain for my clients in my capacity as mediator – so much so that I have chosen to work only as a mediator in the matrimonial arena.

There are good reasons why divorce mediation can be beneficial for many couples, and why couples can reach better results with mediation than if they had gone the litigation route. In mediation, the couple makes their own decisions, at their own speed, without being subject to the whim or will of their attorneys or judge. The process is entirely voluntary and may be ended at any time by one or both of the parties. The mediator, as a trained neutral, is there to facilitate the difficult conversations the parties need to have and to help them constructively explore their various options.

This approach encourages more of a give and take between the parties, so that instead of it being a win-lose situation, you end up with more win-win results. And especially when there are children involved, after going through the mediation process the couple has learned valuable ways to communicate with each other and their children as they all move forward with their lives.

That’s not to say that mediation is for every couple. If there’s a history of domestic violence, intimidation, or an extreme imbalance of power between the parties, then a more structured court setting may well be necessary. But even with an imbalance of power – as long as it’s not extreme – an adept mediator can often handle this situation by ensuring that the voice and concerns of the weaker party are heard.

Some divorce litigators claim that mediation is not the best arena when feelings are very “raw” and there are highly charged emotional issues under discussion. But, in fact, the reality is just the opposite. A good mediator has experience in handling this situation – by understanding that there is a place for anger in the process, allowing the parties to vent their strong emotions, and then ultimately guiding them back to a more neutral place. Although this dance may be repeated many times as the mediation sessions move forward, typically by the end of the process the intense anger has been dissipated and the couple is able to relate to each other on a much more even keel. Ultimately they, and their children, will have benefited immensely from pursuing a mediated settlement to their divorce.

That is why it is important for me to ask each of them, ideally prior to our first meeting in session, if one of them initiated the idea of the separation or divorce or whether it was mutual, and what they anticipate will happen with their marriage going forward.  The best time for me to pose this question is either during my telephone intake or on the client information form which I ask each of them to bring to the first session. This way, I already have an indication if this might be an issue that needs to be addressed before we proceed, or whether it might crop up at certain points during the mediation.

If the situation is very new and raw for one of the parties, sometimes I’ll suggest that they may want to allow some time before they start mediation, so that the more-reluctant party can begin to come to terms with the situation. Ultimately, in order to move forward with the mediation, both parties need to accept the fact that their marriage has ended.

Divorce mediation has many advantages over a litigated divorce. One of the benefits in this specific situation is that it allows the couple the “space” to come to terms with the end of their marriage without being pressured, as they would in a litigated case, by their lawyers or a judge. Thus, the couple can proceed, at their own pace, to reach an agreement that works best for both of them.

Legal Custody

Legal custody gives a parent the right to make legal decisions affecting the children.  The parent with legal custody is granted the authority to make all important decisions regarding the children, including what school the children will attend, what medical treatment they will receive, what religion they will follow, and what activities they will participate in.

Because these decisions are critical to a child’s upbringing, most courts strongly favor awarding legal custody jointly to both parents. However, if joint decision-making is not in the children’s best interest, a court will award legal custody to only one of the parents. This might be appropriate in situations where one parent refuses to communicate with the other parent, is not fit to make decisions, or where one parent is abusive.

Physical Custody

When a parent has physical custody of the children, the children live with that parent. The non-custodial parent then typically has visitation rights, the specifics of which need to be spelled out clearly.  Depending upon the number and age of the children, along with other important factors, the custodial parent is awarded child support to pay for the basic needs of the children. These needs include food, clothing and shelter for the children.

Sometimes the parents decide to share equal residential custody of the children. This means the children live equal amounts of time with each parent. A typical arrangement is one in which the parents live very close to each other, and the children spend part of the week at one parent’s home and the other part of the week at the other parent’s home. With this arrangement, especially, there needs to be a willingness of the parents to work together and cooperate.

When most people think of divorce, they think of long, painful litigation on top of the already painful emotions they are experiencing as a result of the separation from their life partner. Mediation provides an alternative approach that is good for parents, and especially beneficial for their children.

Mediation offers a less hostile environment than litigation. Neither parent is attacked the way they would be in court where the sole goal often becomes winning. The child can become the trophy and both sides often lose sight of what is most important- reaching an amicable and workable agreement for the parents AND the children.

In custody disputes, lawyers may be tempted to have children testify as to whom they want to live with or to other pertinent facts. The child is already enduring a traumatic experience seeing the family unit split up. If they become pawns in the litigation process, it can only make matters worse.

Even if the children do not testify, they will still sense the adversarial nature that many parents adopt once litigation begins. With mediation, a neutral party will sit down with both parties and attempt to reach a mutual agreement that is viable for both. The parties can then focus on what they want in the future, as opposed to their past failures.

Additionally, mediation teachs a couple new communication techniques that will especially benefit the children. After divorce, parents will have to work together to find a way to co-parent, and mediation will facilitate the process both during mediation and in the future when the mediator is no longer around. Methods of communicating learned in mediation will be effective long after an agreement is reached. These techniques will become crucial to preserving relationships, and avoiding lifelong animosity for the sake of the children.

Divorce mediation is something that every couple should strongly consider, particularly where children are involved.

Enjoy this humorous video created by Joseph Pelling, a British animator and illustrator. The video can be viewed at Vimeo.com.

This is the time of year when many of us have adopted New Year’s resolutions. Just as quickly as we create them, we often end up breaking them. But what if, instead of following our old patterns, we made another type of resolution. What if we chose just one of our resolutions that would otherwise go by the wayside, and applied a different kind of reasoning to it, what I call outside-the-box thinking. Much like the approach taken in Joseph Pelling’s amusing video.

So, with my coach’s hat on now, I’d like to challenge you to do just that. Consciously choose just one change you’d like to see happen. Then ask yourself two questions: What must I do to look at this differently? And what’s possible when I view it in that outside-the-box sort of way?

Let me know what you discover.

So what exactly is Mediator Mind? It’s comprised of a ‘mindful’ approach that each of us can bring to our lives and then see the dramatic difference it makes in all of our relationships. Here are some guidelines for applying this approach:

LISTEN: I mean really listen when you are in conversation with others. Sometimes this type of listening is referred to as active or deep listening. It means genuinely paying attention to what the other person is saying—not just going over your own story in your head. When you’re enabling the other person to be heard, you’re allowing space for a shift in the discussion.

DEVELOP EMPATHY:  Empathy is the ability to understand and share the feelings of others. A good way to develop empathy for someone is to look beneath what they’re saying. You can begin by giving them the opportunity to adequately express their feelings and concerns. Of course, you need to be actively listening to them during this process. After doing this, it becomes much easier to identify the important needs that underlie their feelings.

REFRAME:  Once you’ve done your active listening, with empathy, it becomes a lot easier for a shift to take place in the attitudes of both people. Each person feels like they’ve really been heard. And now both are more open to considering other options or approaches.

Why don’t you try out Mediator Mind and see where it leads you. It certainly works for mediators…and it can work for you as well. Ask yourself: How can I apply Mediator Mind in my own life? Then, see where that begins to take you…