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Fault Or No Fault: It’s Not A Mediation Question

The question of fault or the reason for the demise of the relationship is not germane to the mediation process. Mediation is a problem-solving approach; it focuses on designing settlements that are fair to all involved family members. It is a process that hopes to preserve existing relationships in some workable form (e.g., co-parenting the children) and to enhance communication skills as a tool for building on the parties’ new, reconstituted relationship. It is not a process for looking backward.

There are, however, divorces in which the reason for the divorce actually becomes a component of the mediation. Let’s consider two examples:

Sarah and Al Jetson have been married for fourteen years. They have two children, Johnny, age twelve, and Taylor, age ten. Both parents are actively involved in their children’s lives, particularly in sports activities. Johnny is a star hockey player, a member of school and town teams. Taylor is a soccer player par excellence. Al coaches Taylor’s soccer team and Sarah coordinates the town’s hockey program. Both Sarah and Al describe each other as a stellar parent. Yet Al is deeply concerned that Sarah may jeopardize the children’s safety when she is drinking. Here, alcoholism, whether admitted or denied, is related to the cause of the Jetson’s divorce. Here, alcoholism, not as a fault-related issue, but as a parenting issue, becomes a subject to be dealt with in the context of the parties’ mediation. And, Al and Sarah are not alone.

For couples with children in which addiction, proven or alleged, is an issue, ways need to be crafted to protect the safety of the children, while maintaining, to the extent possible, the privacy of the parties. At times, “side agreements” are drafted spelling out very specific, even detailed, provisions for dealing with problems relating to addiction that impact on the children (e.g., ensuring that individuals are sober caretakers of the children while maintaining strong and caring parental ties). These side agreements are not part of the parties’ court agreement, which is an open record; instead they are referenced but not open to public scrutiny. The “worried” parent has the protection of an enforceable contractual document; the other parent has the protection of confidentiality.

Other examples of couples who find side agreements desirable are those where both parents wish to restrict a child’s access to a particular relative, or other acquaintances, and do not wish to name the person(s) in the document. The importance of the agreement is to ensure future consensus between the parents as a court enforceable agreement.

In truth, the list of issues that are recorded in side agreements can be quite lengthy, although the practice, in and of itself, is not common. For individuals who wish to keep sensitive issues private, a side agreement offers the protection of enforceability clothed in confidentiality.

Our second example presents another issue in which confidentiality is a key reason for selection of mediation as the process of choice. Kristen and Peter Allston have been married sixteen years and have three children, ages twelve, thirteen, and fifteen. Here, too, the reason for their divorce was presented by the parties in mediation as an explanatory statement requiring some attention. When Kristen had an extra marital relationship with Susan, a close personal friend of the family, the Allstons realized that reconciliation was not a viable consideration. For them, as for other couples dealing with issues of sexual identity, Kristen and Peter all too painfully recognized that a heterosexual union does not work for either one.

Here we see couples who have long struggled with their relationship, often unaware of where the real problem lies, now struggling with feelings of sadness, guilt, and even anger. Naturally, mediation is not an appropriate forum for helping each spouse deal with his and her feelings and move forward. For this, a therapeutic forum is needed. Mediation is, however, a very appropriate forum for helping these couples structure their divorce agreement. Best of all, it offers a confidential environment where blame and guilt are not relevant to the decision-making.

Having worked with many couples where one spouse comes to acknowledge his (her) homosexuality, it has become apparent that the issues are not any different than those besetting heterosexual couples. Property still has to be divided; support has to be considered; and complicated custodial and parenting issues have to be resolved. In some respects, these mediations are more straightforward; there are fewer instances of children trying to spearhead reconciliation or a spouse asking for another try at getting back together. Introducing the children to a different notion of his or her parent often is a subject handled in therapy, although terms for co-parenting may well be a subject for mediation. Mediation centers on how to make the divorce happen, while preserving parental ties to each other and to the children. Not uncommonly, individuals return to being best friends, a relationship they wondered why they lost in their marriage.

At the Centre for Mediation & Dispute Resolution, we do not ask individuals why they are divorcing. This question is not the focus or the subject of the mediation. Nevertheless, at times, reasons are revealed in casual conversation or angry retorts. At other times, explanations are quite relevant because related issues need to be handled as part of the mediation process. However, resolving issues in a constructive and logical manner cannot be equated with fault-driven divorces, where blame drives the settlement and the entitlement for payback. Mediation, as a problem-solving process, offers a confidential forum where delicate issues, if broached, can be handled in a private setting and where solutions can be shaped to fit the very unique needs of each couple. This is the best “win-win” mediation can offer.


Lynne Halem

Dr. Lynne C. Halem is the director at the Centre for Mediation & Dispute Resolution in Wellesley, MA. Dr. Halem has worked in the mediation field since 1982. She is on the Family Dispute Service Panel of the American Arbitration Association and a past board member of the Divorce Center,… MORE

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