by Guest Author Barry Davis
I think that one very significant advantage of mediation is often left out when discussing the pro’s and con’s of mediation vs. litigation – the positive impact that mediation has on the children and the parents’ ability to co-parent. Mediation creates this situation in a number of ways:
1. “First, do no harm” – I realize that this is borrowed from the medical field, but it definitely applies here. By simply not worsening the relationship between the parents through adversarial litigation, mediation allows the parents to get through the stressful process of getting divorced without turning them into enemy combatants.
I have a list of eleven studies on the impact of divorce on children that I often use with clients who don’t understand and/or minimize the impact that a litigation battle would have on their children. What is amazing is that every one of these studies basically comes to the same conclusion – THE TRAUMATIZING ELEMENT IN DIVORCE IS THE CONFLICT BETWEEN THE PARENTS! Children are generally very resilient and can usually deal with moving out of the house and the other changes that often come with divorce if necessary, but the one thing that they can’t deal with is conflict, especially open conflict in front of them, between the two most important people in their lives. They simply don’t have the developmental capacity to deal with parents saying negative things about the other, with being put in the middle and being put into a ‘loyalty bind’. This parental conflict is what often leads to a child that needs years of therapy in order to just get back to where they were before the divorce. (Just ask any therapist how many of their adult clients are still trying to work through the childhood divorce issues).
2. Positive Co-parenting – In addition to avoiding the negativity of an adversarial litigation process, mediation also actively develops a positive co-parenting relationship. Mediation does this by involving the parties in the decisions regarding their children and by making these decisions in a child-focused, flexible manner. The mediator facilitates a discussion that proactively addresses dozens of different issues and situations that the parents will inevitably run into at some point during their co-parenting tenure. This achieves two important goals:
- We get significant decisions down in writing, so they are clear and can be referenced as needed.
- We address the issues proactively with the mediator present to help keep things constructive and provide options and alternatives. This helps the parents avoid having to deal with these issues for the first time at some random time, often during their workday and often via text, when they are much less likely to respond in a productive manner.
Another helpful tool in working through parenting issues is to do trial runs of potential solutions during the mediation process. By ‘trial-runs’ I mean that the parents try certain options out while we are mediating to see if they will actually work. One typical example is that a stay-at-home mom doubts that dad will be able to live up to the amount of time he says that he will spend with the children. Rather than arguing over this for an extended period, I’ve often suggested that we try out the timeshare that dad believes he can commit to and see what happens for a month or two. In my experience, this often allows the parents to come to their own resolution based on real-world experiences.
The bottom line is that mediation helps parents keep their children out of the middle of the parents’ conflicts and helps them develop a parenting plan that is in the children’s best interests.
Barry Davis specializes in helping clients through the divorce process in the most constructive, cost-effective manner possible. Working in California, he draws on extensive training in mediation and counseling, including two Masters Degrees (Clinical Psychology and Conflict Management) and over 800 hours of legal/mediation training, to help his clients address both the practical and the emotional aspects of divorce. Barry serves on the Torrance Family Court and Second Appellate District mediation panels, is an adjunct professor at Azusa Pacific University and worked as a staff mediator with the Disability Mediation Center.
