Divorce Mediation: Why It Is the Preferred Method, Application Essay Example
Words: 3004Application Essay
Divorces are becoming increasingly common in modern America. Most often these painful ordeals are filled with emotion that leads to problems between the individuals. Sometimes the issues get brought into the court system, which makes the situation worse for all the people involved, both directly and indirectly. Children can end up having to take the stand at trial, or even being faced with “choosing” between parents. Making that kind of choice at an early age can affect their lives and become a detrimental to their growth as well as development.
My friend’s parents were married for 25 years before they decided to get a divorce. While this is not the most common, it is something that does happen. On the surface, everything always seemed very calm and nobody had any idea they were talking about divorce, especially after being married for so long. Originally high school sweethearts, “John” and “Jane” married very young, but waited to have children. It seemed that they were doing everything right, taking time to become more stable couple before they entered into further obligations, with children.
After some time, the two had children and fell into the common parent-employee routines. John worked long hours at his upper-middle class job, and often got home from his job at night. Jane worked part time during the day and some nights, and often their schedules conflicted, which was not good for their family or home time. Jane took over a most of the childcare responsibility of their two boys. John, however was not absent from the childrearing process and almost always was active in their extracurricular activities. John even coached some of his son’s sporting interests. Both parents were loving parents that provide an attentive home for both of their children, above all else.
One of Jane’s “irreconcilable differences” was the troubled feeling she had towards John regarding the younger child. She always felt that John never took enough time to understand the younger child’s problem, which she believed added to tension in the home life. Much of the issue also centered on the medication that the younger child was prescribed to help control his behavior, which was Adderall. John did not feel comfortable giving his young son a mood altering drug, and was constantly at odds with Jane about it. Although he did not like the situation, he always made sure that the child took the medication and followed the doctors’ orders. It caused more trouble between him and Jane, because they were always bickering over the use of the medication. This issue, along with a few other problems, lead to what they considered to be irreconcilable differences in their marriage. While it appeared that Jane was upset by John’s lack of understanding and interaction, it seemed that she was reaching out for attention and support. Further, it seemed that John pulled away from some of the activities of daily life because he did not agree with the medication, likely out of fear.
There were also claims of infidelity by both Jane and John, however neither were ever factually proven. Jane claimed that John had cheated on her years earlier with one of her own friends. She said that while John was at the house doing construction work (that part is confirmed), when Jane’s friend entered the room in the nude, and that is how the alleged indiscretion occurred. This claim was made only after John had his say, however, at which time he denied the allegation. While it is not known if the claim is true, Jane believed it to be true and asserted her opinion.
It appeared that Jane made an allegation based on her thoughts, but did not have good proof or a backing for her thoughts. John had a much more believable and credible story about Jane, and what was allegedly a long-term affair, again with a family friend. According to John, he had proof of an affair, because she had been seen by a family friend with another man. John claimed that Jane was spotted at various bars with another man, by a mutual friend. Even though this happened, John however stated that he was very much in love with Jane. Assuming the allegations were true, John left the past behind and continued to love his wife. It does appear that John forgave his wife, but still had some underlying anger that may have factored into his actions and frustration.
These facts are very important with regards to Kraybill’s model, as well as his description of the way people initially respond to conflicts. In this case, there were many examples of both “calm”, or the way a response when the disagreement first arose, as well as “storm”, or response to conflict that is not easily resolved (Kraybill, 2005).
When the divorce was filed and entered the judicial system there were many allegations and problems that surfaced. The case became nasty very quickly, and lawyers entered into less than desirable campaigns against the other side. Meanwhile Jane and John were still living in the same house, which was another huge problem in the conflict. John was not happy about the idea of having to move from a house he spent so much time effort on to make it beautiful. Jane of course, did not want to leave either and there appeared to be a standoff between the two. As the court battle continued and things became even more heated, the house was nearly placed on the real estate market to be sold. The theory was that if the house was sold, that John and Jane could split the profit and that neither would be awarded the house.
Considering these facts with regard to Ron Kraybill, both sides were clearly digging in their proverbial heels. It seems that both sides were epitomizing the “storm” response, as the conflict was not easily resolved and was dragging on. In addition, both parties, whether the lawyers or the individuals, were both exhibiting directing responses, which is why a resolution was hard to find (Kraybill, 2005).
As the case became more intense, it also became more complex. There were six court appearances that resulted in no changes and increased legal fees. Each of the couple was taxed with huge legal fees and they were no closer to resolving their differences. In fact, they may have actually discovered more problems and issues to disagree over throughout the entire process. This is the perfect example of how the process of divorce is can be worse than the actual divorce–it almost ripped apart a life-long friendship.
Over the period of divorce mediation there were two different methods used. The first type, called transformative mediation, is generally the preferred method of resolving conflicts. This type of mediation places the most importance on the individuals, taking their “needs, interests and values” heavily into consideration during the mediation process. Unfortunately, the process of transformative mediation takes longer than other methods simply due to its nature–two people will not always initially see the validity of the others argument initially. However, it disproportionately leaves the clients with a much happier result (Zumeta, 2000).
Eventually, due to the time this take took to settle, the other method used was evaluative mediation. In this way of mediation, the mediator goes from person and back to another, or generally from one lawyer to another, evaluating the needs of each client to reach a settlement in the fastest way possible (Zumeta, 2000). In the case of John and Jane, this was where the mediation started to lean more heavily on the lawyers, and much of the nastiness stemmed from. They were in the minority in their ability to revert back to settle the case.
According to Stoner, a good mediator can help balance the power, or correct any imbalances, that can occur when one party has financial means that the other does not. She goes as far as to say a good mediator will end a session if they feel the balance of power outside their control. This sounded like a more civil way to deal with divorce and finally get some closure to the problems and fighting (Stoner, 2013).
As was the case of my friends’ divorcing parents, debt can build up quickly by continuing to pursue a divorce settlement in court. Most often the people that benefit the most from this system are the lawyers themselves; they are clearly getting paid a large amount of money for every piece of paperwork, court appearance, or even phone call. Stoner maintains in the same article that “in contrast [to using mediation], using the courts are cumbersome and expensive,” (Stoner, 2013).
This means that instead of paying lawyers to continue fighting, that it is best to have a mediator help find a resolution to the problems. Stoner does feel that lawyers are necessary, but an addition, not a sole requirement of the divorce proceeding. She states that because divorce is a relatively new form of conflict resolution, many lawyers are simply not trained to engage in mediation. She even admits that some lawyers will advise against mediation as a way to solve divorces, saying that “spouses should not negotiate on their own”. This is one of the most important things according to her expertise, finding a lawyer that embraces mediation (Stoner, 2013).
Stoner also lists the ways that attorney’s can assist in the mediation process. Clients, or opposing parties, are always more informed of their rights and options. In addition, she states that many lawyers will stay on as a consultant and would not require a retainer fee. The mediator also cannot make any decisions for the parties and that they are only there to assist in the communications process, reducing stress on all parties (Stoner, 2011). They are not meant to take the place of the lawyer or rights of the individual, simply as another tool to find peace in a hostile situation or experience.
Mediation gives the two divorcing parties more control over their divorce as a whole. Because it aims to takes the conflict out of the divorce, it more readily opens the channels of communication, and rather than evidence, differences seem to look like just that. Divorce mediation can also promote a more direct idea of what each party actually wants from the separation, making more common ground. There are also several different styles of mediation, which can help or be used in any type of situation (Divorce Mediation, 2013).
Divorce mediation has proven so effective that some states, namely New York, have created various options. Individuals that are getting divorced can engage in, both free and discounted mediation rather than arbitration. In fact, the state is so pro-mediation that it offers services for individuals having issues with their lawyers over fees and payment through the “Attorney-Client Fee Dispute Resolution Program” (Alternative Dispute Resolution, 2013).
In the case of John and Jane, mediation could have assisted them greatly. If mediation had been employed early on in the case, it would have had a much better impact for the divorce of my friends’ parents in the long run. It would have opened up the lines of communication at an earlier time, and they would have saved a lot of time, money and emotions.
According to Kraybill, and applying the facts of the case–where the mediator was able to find a common ground–they could have worked to resolve some of their differences, or at least just agreed to allow their own difference in opinions. The case of my friends’ parents is the perfect example of the benefits of divorce mediation. When the mediation is used correctly it is the most effective way to solve the problems and friction of a divorce. In John and Jane’s case the judge finally ordered mediation. This order came after a lot of hearings and court appearances which caused both of them to lose a lot of time and money.
The first mediation session did not go well, as neither lawyer was giving in when it came to property or alimony. Issues such as a co-owned time-share were added to the problems, as well as the house and other property. There was a great deal of arguing and it seemed that there was no resolve again.
The mediator told asked my friends parents how long they had known each other. They responded they had known each other for over thirty years. Although the lawyers went back to fighting, they looked at each other and stood up. Both of them smoked cigarettes, so they decided to have a cigarette together. Over that cigarette, they were able to solve every problem that they had been unable to solve in the court or in mediation with the lawyers. They walked up, drew up the divorce agreement, and signed it. They are friends to this day, and live less than a mile from each other.
The mediator was able to do for them exactly what Katherine Stoner described in her article. Simply by asking my friend’s parents how long they had known each other, the mediator found common ground. Without having to say it, the well-trained mediator got them to put their petty differences aside so they both could benefit and be happy.
John never wanted the house to be sold, and Jane never wanted the timeshare, or even alimony for that matter. All John wanted was to stay in his home until he could find a house in the same town, in order to be close to his children. Jane admitted she only wanted the timeshare because John was threatening to have the house sold. In this way, the divorce mediator was the most effective tool throughout the whole process. The mere fact of breaking down the demands of both of the individuals is how mediation works. It aims to find what the root of the demand or concern may be and deal with the core issue. As in this case, Jane was only holding out on the time share because she feared that the house would be sold. Fear and hurt are commonly at the root of problems and individuals are thinking about how to hurt each other rather than acting logically.
The mediator is able to make them realize what they are really doing and how other factors have come into play. Divorce mediation has definitely proved itself to be a more effective way of solving disputes when married couples decide to separate. In addition to the direct example of my friend’s parents, the three articles cited gave the case an application, as well as basis. The divorce mediator proved able to solve the divorce problems faster than inside a court room, with both parties the most satisfied they could be. They were also able to remain friends, simply by giving them the necessary tools to find a common ground, reconnect a long term friendship, and put petty differences aside. The mediator was able to tap the nerve of how ridiculous a few things were, when considering the many years that they had known each other. This shows a clear shift in what Kraybill describes as the directing, to the harmonizing stages between calm and storm reactions (Kraybill, 2005).
It is in the best interest of anyone involved, whether directly or indirectly, to use divorce mediation in the place of litigation or arbitration. It is very important that the State of New York has taken steps to promote the use of mediation by providing discounted and even free sessions to divorcing couples. More states should enact rules an guidelines for couples that are having difficulty getting along or resolving their differences. It is important to preserve the family as much as possible, even in times of divorce. This is especially for couples who have children; mediation places less stress on children, and makes the entire ordeal much easier to deal with.
It is not the fault of the children and they are dealing with their own emotions, and should not be placed in further turmoil by their parents. As with my friend’s parents, sometimes these couples are able to remain friends afterwards. This is obviously the best way for a child to grow up, with the support of both parents, not parents who are at odds with each other, or constantly warring. Divorce mediation is a more time efficient, less costly, and has less of a conflicting component that makes for an easier transition for everyone involved, and can be especially important when dealing with divorce cases involving children. Mediation can also make it emotionally easier for the divorcing parties, serving to take a lot of pressure off, and allowing them to make more rational decisions based less on emotion, and more on equality.
The cooperative method Kraybill explains where there is a high focus on both individual agenda and preservation of relationship is what ended up solving this dispute. This was able to happen to due to costs-incurred, trust between parties, and a shift of the source of power from the attorneys to the individuals. This was reflected in a few strategy changes that allowed for the mutual understanding of each others differences (Kraybill, 2005).
In conclusion, mediation gives a great and cost effective forum for divorcing couples to get to the root of the differences between them, and quickly settle a divorce, rather than dragging out a painful case in front of a judge, where there is no control to be had. The mediator can work impartially with both parties to ensure all needs are met the best way possible. It can actually save money and relationships in the process. Just as John and Jane are able to be cordial and even friendly, other couples can find the same success. Divorce does not have to mean hatred, and in fact shouldn’t when it comes to families with children. There are easier ways to get along and split material goods and property.
“Alternative Dispute Resolution.” Alternative Dispute Resolution. N.p., n.d. Web. 23 Apr. 2013. <http://www.nycourts.gov/ip/adr/Info_for_parties.shtml>.
“Divorce Mediation.” Divorce Mediation. N.p., n.d. Web. 23 Apr. 2013. <http://www.divorceinfo.com/mediation.htm>.
“Divorce Mediation Myths.” Nolo.com. N.p., n.d. Web. 23 Apr. 2013. <http://www.nolo.com/legal-encyclopedia/divorce-mediation-myths-30191.html>.
Kraybill, Ron. “Style Matters: A Conflict Style Inventory”. Riverhouse ePress, 2005.
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