Separation and divorce is a time of making decisions—many decisions. The biggest of all is clearly whether or not to separate and, after that, whether or not to divorce. Facing the big ”D” decision is difficult for everyone, even those who profess to want the divorce. Yet this decision, momentous as it is, is still only the first of many decisions to be made.
How to handle the divorce process figures in the arena of major decisions. Do you get the most aggressive lawyer in town and serve your spouse? Do you get a kinder, gentler variety of counsel? Do you consider mediation as a process for reaching agreement? Being in the mediation business, we suggest that mediation should be considered right up there with the decision to divorce.
Clearly there are many reasons why people choose mediation besides its cost saving component. Couples wish to retain control over the decision-making; they wish to have the opportunity to structure an agreement that fits their family situation; they wish to maintain some kind of post-divorce communication that saves their children from being stuck in the middle of two warring parents; and the list goes on. Yet, it is important to carefully consider the mediation product as well as the process.
Those who advise against mediation often argue that the mediator’s job is simply to get the parties to reach an agreement. As such, the actual “goodness” of the agreement is not as important as reaching consensus. In a way, this is the “split-the-baby” or “split the difference argument.” In this paradigm, the mediator has succeeded when the couple reaches an agreement.
Reaching an agreement is not the end all and be all of mediation. Of course, couples need to have an agreement and that means that somehow or other they need to get to “yes”—whether they do it by themselves or with the help of others or as ruled by a judge. However, the real measurement of the success of mediation is, and should be, the goodness of the agreement for each particular family.
Each individual needs to understand the impact of all decision-making—what they each are getting and what they each are giving up. Also, they need to explore different options. In reaching an agreement, the mediator should help couples examine different scenarios, weigh the pluses and minuses in light of their personal and financial needs and abilities. The final decision, of course, must rest with the couple, that, after all, is the essence of the mediation process.
Getting to “yes” is important and will occur eventually, whatever process you use and whatever your final product. Mediation however, is not and should not be about getting to “yes” at any cost.