Divorce Mediation: Saving the Children

by Diane Neumann

The following two short narratives illustrate the negative effect that two divorce law attorneys had on the children of their divorcing clients. As a private mediator, I often see the effects of lawyers’ actions and attitudes toward parents, and ultimately, on the children.

The first narrative describes Marc, and shows what can happen when parents continue to do battle. The second story describes Kerry, and shows that one can help a child by helping their parents to cooperate. The names have been changed for all of the obvious reasons, but the details are true.

It was almost three years ago that Marc’s mother Barbara called me. She said that a close friend of hers had used me as a mediator and thought that I could help her and her husband. Barbara’s attorney had served her husband Tom with notice of divorce, and Tom was very upset. Both of them were anxious about their scheduled court date for temporary orders, which was in eight days. After speaking with Tom, we scheduled an appointment prior to their court date. They arrived for their initial meeting with Marc in tow. I shook hands with all of them, and I recall how very sad Marc seemed. We left him in the waiting room with my secretary, while Barbara, Tom, and I went into my office. They were arguing on the way in. During that initial session, I recall that Barbara was the one who asked for the divorce, and she blamed Tom’s compulsive working for the break-up. Tom did not want the divorce, and he was concerned that he was going to lose custody of his son to Barbara. It was apparent that they were under a great deal of stress.

Barbara said that she had called her lawyer prior to attending the mediation session, and he had strongly advised against her coming, telling her that she should not be negotiating directly with Tom. We discussed her concerns, and she chose to continue the introductory session.

We discussed their custody dispute at some length and I pointed out my observation of how much Marc meant to each of them. I assured them that there were ways in which each could continue to parent Marc. As parents, however, they had to minimize their conflict if they wanted the best for Marc. At some point, Tom said that his attorney had advised him to request sole custody of Marc. Barbara became tearful and angry, and shouted that her lawyer had warned her that if Tom mentioned sole custody of Marc during mediation, she should just get up and leave. She did just that. Tom shook his head and say that his lawyer had told him that “this was what divorce was like.” I told him that it didn’t have to be this way.

Almost a year went by before I heard from Barbara again. She phoned, and described “a terrible year” in which she received a vacate order to have Tom removed from the house. Tom, in turn, had filed for custody of Marc and a court appointed G.A.L. had investigated their fitness as parents. Barbara had received temporary custody of Marc, with generous visitation for Tom, but they argue, she said, “each and every time Tom comes to the house to get Marc.” I asked how Marc was doing, and she responded that he was doing badly in school, was sick a lot and was not sleeping well at night. I once again explained the detrimental effects of their fighting upon their son. She replied, “I know it hurt Marc when we fought for custody of him, but now that we’re no longer fighting over custody, but over money and property, everyone tells me that it shouldn’t seriously hurt Marc.”  I explained that this simply was not true, that children suffer when their parents fight – regardless of the issue. She explained that she and Tom were once again facing a court date – this time a pretrial hearing. Their biggest disagreement now was over a cabin that they owned in Maine. Barbara said that her lawyer told her that she might be entitled to the cabin. However, Barbara was tired of the legal actions and costs and was considering mediation. She wanted to know it it was still possible. I told her it was never too late. She also told me that she had hired a new attorney and I encouraged her to have her lawyer call me with any concerns or questions about the mediation process.

Tom called me in response to Barbara’s asking him to return to mediation. His lawyer, he said, had told him not to negotiate on the issue of the cabin, and Tom was preparing to go to court. I asked him what effect this would have upon Marc. His reply was almost a replay of Barbara’s. “Because it’s not a custody fight, I was told tat Marc wouldn’t be hurt by a fight that is solely between Barbara and I.” I repeated the fact that parental conflict of every sort can hurt a child. Tom responded by saying, “she’s the one who wanted the divorce.” I told him to call me if he thought I could help.

Tom called me several weeks later. He said that he and Barbara were still arguing, and that at the present time it was over a grandfather clock. He was getting tired of the constant arguments and now he wondered if they could use mediation. He also told me that he was very upset over Marc’s medical problems and poor performance in school. “I just don’t understand what is the matter with him.” I explained once again the effect of stress upon a young child. Tom responded by scheduling a mediation appointment. He said he’d call Barbara to confirm it. Barbara called three days later to cancel their appointment because Tom’s attorney took some legal action, and “my lawyer said that it would be a waste of time for me to come to try to negotiate with him.” I was frustrated by trying to help this family in crisis and kept hoping their attorneys would encourage cooperation between the parents rather than this constant posturing.

Tom called me some time later. The divorce was on hold, he said. Marc had tried to kill himself on his 13th birthday, and he was in the hospital. Tom could barely talk. He said that when he went to the hospital to see his son, Marc had told him that he “just couldn’t take any more of the fighting.”

Marc’s story is a little sadder than most, but not unfamiliar to those of us who work with separating and divorcing couples. The next account occurred a short time later, and I present it to show the positive effect a lawyer can have upon a child when clients are allowed, actually encouraged, to cooperate.

Janice called me to schedule a mediation appointment, saying that she and her husband Richard were arguing over physical custody of their only child, eight year old Kerry, as well as a number of financial issues. They had been to court for temporary orders two months ago, and Janice received physical custody of Kerry, but she and Richard were no closer to reaching a settlement.

Janice and Richard came to their introductory meeting with a wall of deadly silence between them. After I explained the mediation process, Janice said that she had something to tell Richard and that maybe this was the time and place to do it. She said, “The school psychologist called and told me that Kerry needed counseling, and recommended a private counselor.” Janice said that the psychologist asked a lot of questions about the fighting between Richard and her. Each immediately began to blame the other. I asked them to describe Kerry in order to help me understand what she was like. They both described a sweet little girl who was acting very troubled lately. They were worried because she became upset so often and so easily. She was also, Richard added, “having trouble going to sleep at night, and was waking up several times during the night crying.” I tried to focus them on what they could do to help Kerry. They agreed that counseling was a good idea but immediately began to argue about who would pay for a private counselor. They both said they needed to talk with their attorneys if the disagreement involved money.

At the next session, we continued our discussion of how to pay for Kerry’s therapy. Richard said that his attorney advised him to try to work out a payment plan for Kerry’s counseling that Richard felt was fair. Janice’s attorney had advised her to pay according to the income of each parent. Richard said that he had never heard of paying based on income, but he thought it sounded fair. After working out the plan for payment of Kerry’s counselor, we turned to the marital residence.

Richard was angry about the pressure on him to sell the house, so I suggested we look at several options, which included an overview of all of the marital assets. At the end of the session, after reviewing the options, Richard said that “maybe it makes sense for Janice to get the house and I’ll just keep my pension.” Janice responded very strongly to this suggestion and said that she would never give up her rights to his pension plan. I wrote up their proposals and suggested that they review proposed settlements with their attorneys and try to get an idea of the best case/worst case settlement they could expect if they let a judge decide.

At the next session, we began reviewing their proposals, but Richard was expressing a lot of anger. I asked what was happening with him. He told me that things had gotten worse because Janice refused to give back the oriental rug that his parents had given him. Janice insisted that the rug was a gift to both of them. Richard said that he was really upset over this, but when he told his attorney that he wanted to go to court over it, his attorney had said that a judge might not even listen to his explanations. Richard and Janice had been alternating between anger and silence since their last session.

I asked how Kerry was doing and Richard said that she was now wetting the bed at night. I explained that they needed to work out a settlement that each felt was fair and that would minimize conflict, as conflict was creating problems for their daughter. Her reactions were typical of a child who is hurting from the conflict between divorcing parents and it was their responsibility to minimize conflict, as conflict was creating the problems of their daughter. I asked them to stop for a minute and answer this question, “Did each of them love Kerry enough to stop fighting for one week.” I remember the surprised look on their faces. Janice said that she’d stop but, “It’s all Richard’s fault.” Richard looked at her in amazement and responded, “let’s stop kidding Jan, you know what you do.” I told them that they both needed to change and to stop the fighting if they truly wanted to help Kerry. I asked them how they could refrain from arguing or icy silences until their next appointment – exactly one week. Janice said “only if we don’t talk about the settlement” and Richard added, “I need to know that we can talk about it in here.” They agreed not to discuss the settlement with each other, argue or live in silence for one week.

At the next session they reported that they had not fought or ignored each other throughout the week. Barbara added, “Kerry didn’t complain about being sick all week either.” A short time later, they reached a preliminary settlement, which their respective lawyers reviewed. At the last session, Richard said that Kerry had actually slept through an entire night.

Kerry’s life took a better turn than Marc’s. Though not all parents can be helped to cooperate, more can be encouraged to do so for the sake of their children. Unfortunately, many parents have bought into the myth that if you are not fighting over custody, it is not hurting the child. That simply isn’t true. Children suffer when their parents bitterly argue. Parents and lawyers need to know this simple fact. Children already know it. Family law attorneys can help their clients minimize conflict and attempt to be cooperative. The best thing that parents can do for their child is to reduce the destructive conflict.

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