I never thought I'd want to mediate matrimonial disputes. So much sturm und drang! All that pain, anger, resentment, and distrust! Of course, as a practitioner in the area of estate planning and administration, I had occasion to draft pre- and post-marital agreements, or to represent a party to one. But those couples were on good speaking terms. So, for the most part, it wasn't difficult for them to agree on things.

When I began mediating custody and child support cases for the New York Peace Institute (formerly part of Safe Horizon), however, I realized two important things. First, it wasn't my sturm und drang. I could acknowledge the emotions expressed by each member of the couple, even feel inwardly sympathetic, without having to experience those emotions myself. In fact, as a mediator, I needed to maintain distance in order to remain neutral and keep the conversation balanced. Second, in encouraging my pre- and post-nup clients to work most matters out for themselves, I already was following, albeit unwittingly, a major precept of mediation, which is to create a forum in which the participants can work things out for themselves.

Ultimately, two things convinced me of the merits of mediating matrimonial disputes. I received my first request from clients seeking a separation. The process took place over a number of months since, in mediation, clients participate in setting the pace. This couple had two teenage children, so we met for a handful of sessions, in person and by telephone. They also found it helpful to see their progress in writing, so we went through several drafts of a separation agreement. On conclusion, they agreed the process was preferable to fighting it out in court. Then, I participated in a mediation clinic with Prof. Robert Collins of Cardozo Law School. The clinic was an ideal way to experience the divorce mediation process in-depth, by co-mediating with someone who had handled many such mediations before, and who also had given the process a great deal of thought.

Practical Aspects of the Process

To me, one appealing aspect of matrimonial mediation is that it entails making a very specific set of decisions. The issues will vary, of course, depending on the couple's financial situation, including their respective earning capacity, whether there are minor children and, if so, how many and of what ages. But regardless of a couple's particular issues, the need to resolve them—usually in a very specific way—serves as a guidepost for the conversation and helps the mediator keep the discussion on track.

For couples with a minor child or children, invariably the first issue on the table is who gets custody? “Custody,” it turns out, is a very loaded term. Many clients come to mediation with a preconceived—and often inaccurate—notion of what it means. For two of the parents we met at the clinic, “having custody” seemed to be the very embodiment of parenting. While it is true that “having custody” has important ramifications, it needn't—and oughtn't—be a parent's sole objective. Mediation allows for less contentious examination of the ramifications of custody, and more flexibility in working out the details.

Mediators use the terms “decision-making” and “parenting time” in order to differentiate the two aspects of custody and diffuse its emotional overload. Many parents don't realize that these two aspects of “custody” are not inseparable, and do not necessarily have to be resolved in the same way. A couple may want joint decision-making with respect to decisions about education, medical treatment, and so forth, even though they expect that the children will be spending far more time with one of them. Conversely, a couple may want equal time, but be content to allow one of them to hold decision-making authority. The mediator can explain to the former that they may opt for joint custody. In the latter case, the mediator will explain that the parent with decision-making authority will be the “custodial parent.”

A major premise of divorce mediation is that the parties themselves are in the best position to make decisions about child-rearing. After all, they've been doing it all along with at least some degree of success. They are familiar with the children's and their own schedules. They also know what other resources, such as family members who live nearby, are available to pick up any slack. It therefore makes sense to have a couple work out a parenting schedule with each other directly, rather than through their attorneys.

Similarly, since the parties are familiar with their finances (assuming they have been honest with each other), they are in the best position to make their own decisions about asset division. Note that, while a mediator may not give advice or evaluate the manner in which a couple plans to divide their assets, a mediator may provide information. So, for example, a mediator may tell a couple how other couples generally arrive at a value for the marital residence. A mediator also may explain how retirement accounts are handled in order to maintain favorable tax treatment, although the division itself is left to the matrimonial legal experts.

Mediating child support obligations requires familiarity with the Child Support Standards Act. The New York statute (Family Court Act §413) provides the guidelines used by courts in determining child support obligations, which are explained to the couple and recited in a mediated separation agreement. The statute also provides factors to be considered in deviating from the guidelines; and mediation provides an excellent forum for the couple to consider them. As in the case of decisions about parenting, the parties themselves are the most knowledgeable about their respective financial situations, including availability of assistance from other family members, special needs of the children, and other obligations of the non-custodial parent.

New York courts also have guidelines for computing spousal support. These, too, are explained to the couple and recited in a mediated separation agreement. Again, the parties are the ones most familiar with their respective abilities and financial needs, and are therefore in the best position to work out support arrangements for themselves. Each party will know, for example, the details of his or her employment situation and future earning potential; and each party will know his or her current intentions about seeking other employment, going back to school, relocating, and so forth.

Matrimonial mediation also provides a forum for couples to work through certain estate planning issues that may arise in the context of a divorce. A couple with minor children should agree on a guardian for those children. The parties know who the options are, and how they feel about those options. The parties may decide to use life insurance as a means of securing child support or spousal support obligations. Again, in mediation, each party can decide (1) whether he or she trusts the other to receive the insurance proceeds directly, and (2) if not, who might be available to manage them instead.

Tips for Success

Sometimes it pays to start with an easy issue. Mediation ultimately may be less stressful and more efficient than litigation, but it is arduous work for the parties while they are going through it. If a couple becomes stuck on a particularly thorny issue, it generally pays to move on to a simpler one. This reduces the level of tension in the room. And once the simpler issue is resolved it gives everyone—mediators included—a sense of accomplishment, and fosters willingness to continue.

Another important mediator practice is reassuring the parties about progress. Individual mediators have different views about how much venting to allow. But even in an entirely civil conversation, a couple may spend much of a mediation session going in circles over the same issue. It's important, at the end of the conversation, to point out what progress the couple has made, and to express appreciation for the difficult work they've been doing.

Matrimonial mediation usually requires a few sessions—more if there are minor children involved. This can be used to advantage. A mediator may decide to assign the couple “homework” to complete on their own between sessions. Assignments may entail dividing up the furniture, or figuring out which holidays are important to whom. Or a couple may need “processing time” between sessions. Mediation fosters communication; and often information will surface that one or both parties need to consider further, just as we all sometimes need to “sleep on it” before making a complicated or difficult decision. I worked with one couple who spent most of a session arguing about where the children would attend school in the fall. Mom did most of the talking, so I asked Dad what he thought. At first, he replied, “Well, she's in charge of education.” But when I asked again, he took a deep breath and said, “To tell you the truth, I feel emasculated [by being excluded from decision-making in this area].” We concluded the session shortly thereafter, but when they returned for the next session, all the school decisions had been made.

And that's the most appealing aspect of matrimonial mediation: Not only is it more efficient and less painful than battling over these issues in court, but sometimes something remarkable happens.

Leslie J. Wilsher is principal of Wilsher Mediation and a volunteer mediator with the New York Peace Institute.