Divorce mediation is a true first love of mine, and that love informs all the other approaches to family law.
I have always loved mediating cases, even as I continued to practice in other ways. Litigation. Collaborative Divorce.
Mediation is different from the act of practicing law in that the Mediator is a neutral third party, whose role is to help divorcing couples discuss and resolve their disputes. This happens outside of court.
One method I use for Divorce Mediation is the Insight Approach. It comes pretty naturally to me because I’ve always been more curious when asking questions.
The idea of insight is to not have judgment, to ask questions to get at what really matters to the clients. To help them make decisions and get to a resolution that they’re both happy with.
Let’s say a mother and father are at an impasse, and very angry at each other. I can take them into separate rooms and ask a simple question such as, what do you hope will be different if you are able to engage in an active conversation with the other person. Just asking the question gives them pause to reflect.
Many mediators just want to get the job done. This is true in any profession! But such an approach is at odds with the very nature of mediation.
You can succeed in mediation by telling people what they must do. But you haven’t really mediated their case. You’ve just finished it for them.
What about when you can’t get people to find a way to work things out, and you all agree going to trial is not a good idea?
That’s why I look at Divorce Mediation as a process that needs to involve the engagement of both parties.
I ask four questions from the Insight Approach, which I keep on my desktop at all times. They are a really good way to start a conversation with clients to get them thinking about what’s important to them.
I’ve used the Insight method during a Collaborative Divorce meeting, too, by asking a question instead of making an assumption.
It’s imperative to not make assumptions. We often ask questions with assumption as part of the question. A lot of us are problem-solvers, especially attorneys, and we come with good intentions. But if we don’t provide all the ideas or feel like it’s our responsibility to solve all the problems, it opens us up to creative solutions that fit that particular situation.
Because I love Mediation so much, the mission and vision of my law firm guide us to provide a different approach when we must litigate. Someone who is not litigious can end up in court, and they need someone who shares their values and understands why we’re doing what we’re doing and can handle it with compassion. A lot of litigation attorneys are missing compassion.
But at Transitions Legal, we are dedicated to bringing compassion, insight, and listening to every case. And that comes from my expertise in Mediation.
Divorce strategies, or how we approach divorce, develop from listening to the client, understanding their needs and desires, and looking at the law. Once we know the needs of the family, we can decide in which direction to move.
When it comes to divorce strategy, at Transitions Legal, we consider whether Mediation, Litigation or Collaborative Divorce will best serve the client. I prefer to leave Litigation for last, as it offers the least control to the attorneys and the clients.
Sometimes the strategy depends on factors outside my control, like which attorney my client’s spouse chooses. If it’s a difficult, litigious lawyer, then we are likely to land in court before a judge and have a pretty acrimonious and costly path.
That affects my strategies in terms of cooperation and communication. I might be more guarded if I know the other attorney makes everything difficult or won’t easily share information. That’s a strategic decision.
Nonetheless, I prefer to have control over how we will go forward. I like to have choices to present to my clients, let them decide which way best serves their needs and goals.
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I love when the other attorney is cooperative, and we know and trust each other. Then, we’re going to be more open and collegial, not question every move and tactic.
If having the kids more time is important to a client, then I think strategically about how to frame everything in terms of Parenting Time and Custody so that it serves the children through this transition.
Even in the Collaborative context, a process strategy might be, ok well I think I’m going to guide you more to talk with the divorce coach about your needs and desires.
Strategy depends on a lot of factors – the client’s needs and values, the opposing counsel, the type of case, the law, and more.
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Even background, details-while-married, factor into the divorce strategies. For instance, if you suspect your spouse is having an affair, that will likely drive the case. Once I have a full picture, I can recommend the strategy that will best serve a client. Then, we have options.
We can strategize where to put a client’s money – investigator or therapy? For instance, if your spouse spent a lot of time away from the family, leaving you alone to manage your children and the household – were they having an affair?
Investigating an affair is usually only important if the spouse spent time away from family, lying, when they were needed to help with the children, or were with the other person while also being with their children or they spent marital funds on this other person.
Divorce strategies weigh and measure what to spend our time, and resources, on. So perhaps my client is better off spending money on individual therapy rather than a PI so they can get stronger and healthier by dealing with their own emotions as they transition to their new phase of life. All of these details inform how we will move forward. And this is just one example of many!
And it really does differ from client to client. At Transitions Legal, we focus on serving our clients’ needs toward their best outcome. We do not believe in a one-size-fits-all approach to practicing family law. We innovate based on listening to our clients, understanding their values, and applying information to inform our divorce strategy.
For the longest time, mothers got custody automatically. But now, in an effort to correct a perceived injustice against men, courts and law firms alike are focusing on dads, circulating legislation to establish mandatory equal parenting time motivated by dads groups.
It’s like a pendulum swinging from one extreme to the other, and I hope to eventually see it settle in some middle ground with the focus solely on what is best for the children.
This change began when I started my career in family law in the early 1990s. I cannot remember a case where it was an automatic win for the mom. Yes, moms were still favored, but it wasn’t automatic.
Over the last 20 years, it’s really intensified, as newly-elected judges brought their perspectives on the idea of parenting time to the bench. Sometimes it feels like it doesn’t matter what the law says.
You can walk into one judge’s courtroom and know that they are a “50/50 judge,” which means they start from an assumption of equal parenting time and if you want it to be something different, you better show a good reason why. It is really difficult to get them to move.
Litigation in such a courtroom is quite challenging when you know there is a good reason to skew the amount of time children spend with one parent or another, or even just where they will lay their heads at night. Sometimes it’s as simple as the roles parents played while they were married. You can’t draw a sharp line in the sand when you split, making everything change immediately.
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When one parent has been the primary caregiver, it’s uncomfortable not only for the parent but for the children, to suddenly be ousted from their job or role and the whole family thrown into a very different routine.
It’s challenging, too, for the non-primary caregiver, who may have no idea about a lot of what goes into taking care of a toddler or school schedules or carpooling and they’re forced to step into a very different role without guidance or transition. They may be too proud to ask for help.
A divorce is often not the most collegial of processes, which means parents on both sides may feel uncomfortable asking the other for guidance in their new role. Which is exactly what they need.
When you get into court, you’re positioned against each other so instead of recognizing these natural human elements, it becomes a fight, where they won’t talk about or look at options.
If we want to move towards promoting more equal parenting time, then depending on the real life situation, it may be best to move toward that point in stages.
That way, it’s less disruptive for the children, while giving time for both parents to transition into new roles.
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Depending on the ages of the kids, I recommend giving six months or a year to make a change, giving both parents space to learn about their new role. The kids also can gradually transition into the changes.
In the divorce world, most attorneys fail to and some even refuse to talk about the impact of all of this. The focus is instead on the outcome . I wish we recognized how kids bear the brunt of adult decisions. For instance, they’re the ones shuffling back and forth between two homes – not the adults who initiated the divorce!
I yearn for a time when divorcing parents can put their hurt and anger aside in exchange for a focus on their children, who didn’t ask for any of this. This means not just talking the talk, but showing it by the compromises and agreements they make. Parenting time must be about the children – not about the parents!!
I prefer to look at parenting time as the parent’s opportunity to spend time with that child, on the child’s schedule. Whether you’re a mom or a dad, you can and should be more involved in school, spend more time with your children doing things of interest to them, and cherish this time, even if it’s not an overnight.
It takes humility on both parents’ parts to recognize their strengths and weaknesses, and cooperation to work together, but in this model the focus is completely on the children. Which is how it should be.
Clients often wonder which path to take when divorcing, as there are many routes to go – litigation, mediation, Collaborative Divorce, or a DIY online quickie. Here’s a way to understand each option and when you should opt for one over the other.
LITIGATION
If you and your spouse have agreed on the details of the divorce and are just ready to file and get it done, litigation may be the way to go.
Litigation is a court-based way to divorce, where the case goes before a judge, who has to sign off for it to be final. Litigation does not always mean a trial!
But sometimes it does. There are other reasons to go the litigation route, such as when one partner is narcissistic and there’s no agreeing to anything. The only choice in such a situation is to take it to court – get in, get out, and know there will be no compromises with such a person.
Another reason couples opt for litigation is when they cannot agree on anything and they need a judge to make a decision for them. It’s definitely not the best thing for a family, but sometimes you have no other choice. In such situations, neither person will be happy, and a judge will never know your family the way you do. Litigation basically stops the bleeding.
COLLABORATIVE DIVORCE
This is my favorite way to practice because it’s out of the court system and driven by the needs and desires of the couple and the family.
In Collaborative Divorce, you must listen to the other person and agree to a resolution. It’s a method that can be good for every type of case because it’s not a kumbaya situation, but it does take everyone and everything into account.
Collaborative Divorce can be tough, but it’s always humane. Underlying problems would blow up in court, but in Collaborative Divorce, your team will guide you through emotions to the rational side for negotiation and resolution. The team makes a difference.
MEDIATION
Mediation requires compromise. This is a good format for two people who are comfortable communicating with each other and both have a good idea of the marital assets.
Opt for mediation if neither of you is afraid to speak up. While you might not be that comfortable one-on-one, you’ll go through this in a room with a neutral trust third party who can say the things that need to be said.
Mediation is good for couples who understand themselves and will do individual work to bring back to the room with the mediator.
In divorce cases litigated in Michigan, the amount of child support is determined by a formula developed by the State office of the Friend of the Court. In most cases, we have no say in the amount of support after providing documentation of income sources.
Child support is the term for money paid by one parent to the other to help provide for their children.
Support is intended to cover day-to-day living expenses, such as shelter and food costs, and includes components for health insurance, healthcare expenses, and childcare.
Plus, it divides the financial responsibility for the children between parents based on each parent’s monthly net income and the amount of time the child spends with each parent.
The Differences in Collaborative Divorce
In Collaborative Divorce cases, however, we embark on a conversation between the divorcing parents to determine not only their own living expenses, but also the expenses attributable to the children specifically.
The parents can evaluate the amount determined by applying the Child Support Formula against their real-life expenses. Then, they make a decision if it is appropriate to deviate from the Formula.
The parents can also decide if they can arrange the children’s budget in a more creative and equitable fashion.
Here’s How it Happens in Litigated Divorces
In a Court-based, litigated divorce, the amount of support can deviate from the Formula IF it is in the best interests of the child. However, proving this is difficult, cumbersome, and costly. Divorcing couples only achieve deviation in Court where the parties actually agree on the issue.
When a couple decides to divorce, they must accept that child support is a simple formula in which they have little to no say. However, the process they choose for divorce can make a difference in how support is decided.
Check out this resource from the state of Michigan for more information.
That’s why I look at Divorce Mediation as a process that needs to involve the engagement of both parties.
