Why Mediation is Good for Kids
The methods of our modern court system have their roots in ancient rites of justice —primitive but decisive approaches like trial by fire or trial by combat, where strength and cunning in battle—rather than an objective code of justice—usually carry the day.
Modern divorce, like all civil litigation, is handled by the courts as an adversarial process that has certain traits in common with these ancient ordeals. Belligerents threaten, attack, delay, spring ambushes, gather intelligence, interrogate enemy prisoners (this is called a deposition) and other warlike activities to defeat the enemy. Aggression, intimidation, feinting, flanking...these and other hostile maneuvers are used to win concessions or outright victory during the legal battles that accompany divorce.
Not surprisingly, such bellicose strategies are unlikely to minimize conflict or dollar costs, or leave the combatants feeling respectful of each other. Both the money and the good will so desperately needed by the post-divorce family are spent beating each other up in court, or in the legal maneuvering beforehand. Every injury and injustice of the marriage is relived, dramatized, and magnified to punish the other person or gain an advantage.
The kind of post-divorce relationships that these tactics create are often hostile, negative, competitive ones, a continuation of the divorce wars by other means. The angry spirit of the legal battle can live on long after the end of the legal proceedings, resulting in years of squabbling about money, scheduling, parental authority, and family loyalties. The kids are caught in the crossfire, and often end up as the collateral damage. Medieval justice was mercifully quick and clean by comparison.
Mediation is a collaborative process in which disagreements and conflicts are worked out cooperatively. There are no winners or losers. No attacking or ambushing. No costly punishing through "scorched earth" legal strategies. This is because, in mediation, there is nothing to prove—only a settlement agreement to work out. You, the parents, are in control, and while compromise is a necessary feature of the process, no decision can come out of mediation that you don't agree to. In an adversarial proceeding, the marital "pie" of property, possessions, time with the children, child and spousal support, are divided up according to a preset standard—the law—applied by an impersonal arbiter—the judge—who does not know you, or your children or anything else that would allow him to decide your case creatively, for the benefits of all concerned.
Even in a case that doesn't go to trial (and only a small fraction of divorce cases do) there is limited room for creative solutions that stray from the standard of "what the judge would decide." In mediation, while the law serves as an important backdrop (including rational predictions of the outcome in court), the couple is free to give these guidelines as much importance as they choose—to stick to them exactly, ignore them altogether, or something in between. This creates a freedom that allows parents to stay focused on the needs of the family, matching them creatively with available resources. In a litigation atmosphere, on the other hand, the resolution of even the most complex family issues must be chosen from a limited set of answers provided by the law.
Finally, the tone of the mediation process is mostly conciliatory and cooperative. Real conflicts exist, just as in an adversarial proceeding, but conflicts are worked through at the emotional level first, and then through negotiations aimed at producing outcomes that can be seen to both sides as fair.
As a result, mediation is highly effective in addressing what we know to be the most damaging aspects of divorce when it comes to the children.
Simplistic headlines to the contrary, no one can say just how bad divorce is for kids, especially for your kid. We do know how to minimize the damage of divorce to kids and give them the best possible chance of living good lives without the harmful overhang of a bad divorce. With this knowledge in hand, as parents who have decided they can no longer continue as husband and wife, you do not have to sacrifice your children. You can choose the road of conflict and conquest in court, or the path of cooperation and conciliation through mediation. The choice is yours.