By choosing to behave in any of the above ways is to consciously allow a divorce to take on a life of its own, taking the focus away from those issues that are in dire need of attention: the needs of the children, the disposition of assets, the ability to survive financially post divorce, where the parties will live, with whom the children will live, how the family medical and dental expenses will be paid, and how a surviving parent and the children will be cared for should one parent die. At best, the task is daunting; there is no time for unproductive arguing or juvenile jockeying. Lives will be restructured by the divorce; there is no avoiding it. However, if people choose to meaningfully participate in the process they will retain far more control on the outcome and the future of their families.
The role of the Family Law Mediator is to channel energies positively. The less a party is able to behave in an appropriate, civil manner, the more the individual ultimately forfeits the opportunity to productively participate in bringing his or her divorce to resolution. When a participant proceeds with civility, however, the right to make life decisions is retained rather than placing it in the hands of a third party; a judge who receives select information and makes a decision based on that limited information. It is as if the judge looks though a key hole of the door to a large room and is then expected to accurately describe the valuable pieces of art hanging on each and every wall. It is simply impossible and at best, a judge’s decision is typically imperfect. Of course the advantage of having a judge make a decision is that it gets done. Yet, even after a judgment has entered and a divorce is final, the unresolved emotional issues that a court cannot resolve remain firmly in place, often with far reaching tentacles capable of impacting the lives of generations to follow. An attorney practicing for decades, for example, may represent multiple generations of family members who remarkably present with very similar marital problems. To add insult to injury, when a judge hears any aspect of a divorce, those hearings usually occur in a public courtroom. The veneer of privacy and dignity is non-existent in a courtroom. Mediation offers a viable alternative to all of this.
The fever pitch commonly associated with the divorce process can become so heated that individuals often waive their rights to participate effectively in the process, largely without realizing the consequences of their angry misbehavior. The courts cope with this problem in a variety of ways: court officers being asked to separate arguing parties in the courthouse building itself, leaving the attorneys in a separate area to negotiate on behalf of their clients; police officers being called upon to assist normally rational adults who simply cannot interact appropriately even for the seconds it takes to drop off or pick up their children; and courts entering orders prohibiting verbal exchanges between the parties in the presence of their children. It is amazing that in a world that is so focused on communication via every possible medium; e-mail, texting and twittering to name a few, people in the divorce arena regularly and voluntarily relinquish the right to express themselves at all, simply because they refuse to do so in a respectful and productive manner. The Family Law Mediator is trained to focus on resolving disputes by keeping the communication on track.