The majority of couples who choose to settle their divorce outside of litigation – whether they do so in mediation, Collaborative Law or a more traditional, out-of-court negotiation – are motivated to avoid litigation by a concern for how it could impact their children’s well-being as well as their own autonomy as parents. According to Robert Emery, whose article, “How Divorced Parents Lost Their Rights,” was published in this Sunday’s New York Times, they have good reason for concern.
While my own observations of the threat to parental autonomy that litigation poses are less severe than Emery’s (NB: it would take a heck of a lot for the court to overturn a parenting plan agreed to by both parents), the fact remains: divorcing parents in litigation are subject to a level of government involvement in and scrutiny of their parenting and their lives that would be unfathomable for their married counterparts.
In addition to considerations of parental autonomy, Emery reminds us of what myriad studies, including his own, have revealed about the impact of divorce on children, i.e., there is measurable positive impact on children when their parents choose to divorce not in litigation but in a settlement-focused process like mediation or Collaborative Law.
When I worked as a litigator, I often wondered if those studies were legitimate. Did they actually show correlation when they meant to show causation? That is to say, did children in mediated divorces fare better not because of the mediation process itself, but because they had the type of parents who would choose mediation? My assumption at that time was that the parents who chose mediation over litigation had lower-conflict relationships and, thus, lower-conflict divorces.
Today, about a third of my practice is mediation, and I’ve seen first-hand that it’s not the exclusive domain of low-conflict couples with easy divorces. On the contrary, couples choose — and have success in — mediation even when there’s intense animosity between them, where major violations of trust have occurred, and where each of them has substantial doubts about the viability of the mediation process for their particular circumstances.
If it’s not necessarily the parents’ low-key, low-conflict relationship, what is it about mediation, then, that could lead to better outcomes for children of divorce? Could it be that even the most strained parental relationships are incrementally improved by participation in the mediation process, and that any improvement in the parents’ relationship positively impacts their kids? I think it’s possible.
There’s something unifying – often subtly, sometimes in a more transformative way – about participating in a mediation process, where you’re sitting on the same side of the table rather than on opposing sides, facing a common problem that you share responsibility for solving rather than awaiting an externally imposed solution. In my experience, this is true even and sometimes especially for couples with highly conflictual, highly complex divorces.
So, if mediation and other alternatives to litigation have all of these benefits, why would parents choose litigation? Certainly not because they don’t care about their parental autonomy. Or because they’re agnostic as to how their divorce impacts their children. Far from it. Rather, I think many parents think that mediation won’t work for them. They think that it won’t resolve all of the complex issues of their divorce, and so they don’t see a point in trying it.
While some of these parents are absolutely right that their divorce will never be entirely resolved in mediation, I do think there’s a point in trying mediation. I say that very mindful of the precise finding of Emery’s study. “Huge improvements in family relationships,” he said, were caused not by (i) a divorce mediation that the parents identified as successful, or (ii) a mediation that resolved all the issues of their divorce, or (iii) a divorce mediation between parents who never needed to litigate. Huge improvements in family relationships were caused by six hours of mediation. Nothing more. The positive impact came from time spent and no other metric.
With such a potential upside, even those couples who don’t see themselves as good candidates for mediation might be well served to try it. This includes parents who intend to go the litigation route for their divorce. According to Emery, just a few targeted mediation sessions is enough to reap the benefits of this powerful process.
Ani Mason is a matrimonial attorney based in New York City. She is the founder of Mason Law & Mediation, LLC, a boutique matrimonial law firm dedicated to out-of-court settlement and conflict resolution. She can be reached at firstname.lastname@example.org.