Mediating Divorce Agreements: The Problems and the Potential

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It was really exciting to be part of the divorce mediation movement when it became national around 1980. Almost everyone seemed to be aware of the problems with the adversarial system of divorce, and mediation held the promise of a process that was more personal and far less expensive and time consuming. Mediation training was mainly focused on divorce agreements, and those training courses rapidly became a major source of income for the trainers.

Although some divorce lawyers were attracted to mediation in those early days, for the most part the divorce bar reacted to the mediation movement with initial skepticism. By 1985 the number of trained mediators far exceeded the demand for divorce mediation. Many mediators either never got started with a mediation practice or soon dropped that practice. Some went on to other fields of mediation.

The Academy of Family Mediators was founded in 1981 and provided the basis for the national movement. However, it did not take long before it become apparent that mediation would not quickly take over the field of divorce settlements. Even so, by the early 1990’s the mediation movement had enough traction so that more attorneys started to take mediation training and commenced to do some divorce mediation as a sideline to their regular law practices. During this same period, retired judges also began to offer divorce mediation, often joining in consortiums with their former colleagues.

Prospective mediation clients were confronted with two quite different approaches to mediation. Many of the lawyers who mediated were concerned mainly with exploring the substantive options. In practice, those mediators were often tempted simply to guess what a court might do, and then try to achieve a similar result by agreement. On the other hand, many mediators who came from professions other than law were focused on trying to reach agreement by means of conflict resolution process skills, even though these might not fully address the substantive issues. Each of these approaches has shortcomings. This dichotomy between styles of mediation based upon substantive options and those founded on process skills has been a major characteristic of the entire history of divorce mediation.

By the start of the new millennium AFM was oriented far more on the side of process skills than on a fuller understanding of the substantive options in divorce settlements. In 2001 it joined with several other conflict resolution societies to form the Association for Conflict Resolution. This meant that even less attention would be devoted to helping clients understand the substantive details of their divorce settlements. An organization that was already too focused on process became part of a larger organization in which conflict resolution process was the only common denominator.

What happened is that divorce lawyers and retired judges have wound up handling a substantial part of the total field of divorce mediation. Some of the most successful therapist mediators limit their practices to parenting conflicts. Another successful approach to divorce mediation is that of mediators who are financial planners and/or accountants who worked mainly on the money and property issues. Finally, there are many divorces (especially when there are no minor children) in which the issues are not complex, and accordingly are usually mediated successfully. Of course, even in the early days of the divorce mediation movement, there were some mediators with the ability to handle a full range of the most difficult cases.

The next major development in divorce mediation was the creation in 2012 of the Academy of Professional Family Mediation. This new organization brought together some of the most experienced divorce mediators in the United States. It also included some mediators from other countries, especially Canada, Australia and the Netherlands. The promise of APFM was in recognizing that substance vs. process was a false dichotomy. Successful mediation often requires a mediator who can handle the technicalities of the substantive options and also has the process skills to manage the conflicts in the resulting negotiations and to deal with the emotions of the divorce process.

One idea behind APFM is that in order for divorce mediation to be truly professional, the mediator should be qualified to handle the most difficult and complex cases. This requires a mix of substantive knowledge, process skills, and useful experience. A true family mediation professional needs to have a relevant professional background and years of experience, all of which go well beyond the scope of a 40-hour training course followed by a brief internship. One of the mistakes of the mediation movement in the past was in the failure to recognize that divorce mediation needed to be a distinct profession, even when conducted as an adjunct to an existing profession such as law or financial planning.

Another major development that has influenced divorce mediation is the advent of collaborative practice. Although CP dates from the mid-1980’s, it has gained traction mainly in the last decade. The parent group, the International Academy of Collaborative Professionals, is a well-organized association to promote collaborative practice. Collaborative practice is based upon each party being represented by an attorney, but under guidelines that are quite distinct from conventional divorce representation. Other professionals, such as mental health coaches and financial planners, are involved as needed. One of the adjunct advantages of CP is that is provides a forum for the various divorce-related professionals to get acquainted with each other’s knowledge and skills completely outside of a litigation setting.

Collaborative practice is by no means limited to divorce settlements, but in divorce cases it provides full access to relevant substantive expertise. In order to become a collaborative professional under the guidelines of IACP, it is also necessary to have basic mediation training. Attorneys in collaborative cases agree in advance not to continue as counsel if the case goes to court. Although mediation and CP both seek to find more humane and less stressful ways to reach divorce agreements and to recognize the various kinds of professional knowledge and skills that are involved in this goal, they are also somewhat competitive. To date, many more divorce settlements are reached through mediation than CP, although it is not clear that this will always remain the case.

There is a growing movement for divorce reform, including the group named Divorce Corp that was created by Joe Sorge, a physician-entrepreneur. There are also a number of other mostly single issue divorce reform groups, some of which are quite anti-lawyer. There are proposals to take the courts out of all divorce settlements, except for exceptional situations, following the practice in some of the Scandinavian countries. In the United States, however, the divorce bar has so far managed to find ways to keep attorneys involved in one way or another in most divorce settlements.

APFM has undertaken and is currently actively working on a massive task, namely a program for the certification of qualified professionals for the title of “professional family mediator”. There are three stages in this goal. The first job is to do something that should have been done decades ago, namely to specify the knowledge of substantive options, process skills, and experience needed to justify that title. The second mission is to set up means to determine which applicants have the qualifications to be tested for the title, and then to set up a viable test to determine whether a qualified applicant meets those standards. The final stage is to get authority from the National Commission for Certifying Agencies to do the actual certification. None of these goals are easy to accomplish, and APFM is the first organization to make a serious attempt.

The existing situation on mediator certification is like a patchwork quilt. In some states certification is through some judicial or bar agency, while in others it is by a non-governmental organization. Certification at the state level is not necessarily statewide – it may be by political subdivision. Where certification exists, there is a great variety in the standards for knowledge, skills and experience. Many states still have no certification procedures. Nowhere is there any specific certification for divorce mediation, so APFM would be the first organization to offer such certification.

The proper handling of divorce settlements is obviously in flux, and this situation must be very confusing to the public. Even among the most experienced divorce mediators, one finds a great variety in styles of practice. A majority of divorce settlements in cases with any real complexity are still handled in the conventional manner by two adversarial attorneys. So now when the parties desire to avoid litigation, they have the choice among three distinct modalities – conventional attorney settlements, mediation, or collaborative practice.

Mediators and collaborative professionals have much more in common with each other regarding their professional perspectives in divorce settlements than between than between either of these modes and attorneys in conventional attorney settlements. A chart that diagrams this is found at page 14 in an article by me in the spring 2014 issue of The Professional Family Mediator, the APFM quarterly newsletter. The citation is http://www.apfmnet.org/docs/APFM-Newsletter-Spring-2014-JKh881aN.pdf. Nevertheless, the conventional attorney settlement process is also changing as more attorneys become involved in CP and mediation.

There are two serious obstacles to achieving a more holistic approach to divorce settlements. First, many of the attorneys and retired judges who do divorce mediation do not actively participate in any of the interdisciplinary organizations for mediators, nor do they actively seek a broader understanding of the complexity of the divorce process. Second, many of the divorce mediators who are not attorneys do not take sufficient steps to acquire the technical knowledge to utilize the substantive resources that are needed in complex settlements.

Despite the divorce reform movement, it is likely that divorce lawyers will retain an important role in many complex divorce settlements. As litigation increasingly becomes seen as a “booby prize” for not having a negotiated agreement, there will continue to be a focus on the alternatives to litigation.

There are still many things that even some of the best divorce lawyers don’t know about various areas of the divorce process. Conversely, divorce mediators who are not attorneys often need to have more appreciation for the substantive, technical aspects of divorce settlements. One reason that many of the most successful divorce mediators are attorneys is that they do have that knowledge, and that is precisely what many of their clients seem to be seeking.

Mediators of all professional backgrounds have much to learn from each other. Mental health professionals can teach about the stresses and stages of the divorce process. If they have expertise with children, they can help others to learn about how the stages of child development and how the cooperation between parents (or the lack of it) affects future parenting plans. Financial professionals can share their expertise about sound financial and tax planning. Lawyers can pass on their experience on how the parameters of the law may affect the content of settlements and of the tradeoffs that often lead to successful negotiations.

Professional divorce mediation is a lifetime learning process, and perhaps no mediator can acquire in depth all of the knowledge, skills and experience necessary to resolve all of the most complex and difficult cases. As divorce mediation becomes a recognized distinct profession, it will remain competitive with the other means to negotiate divorce agreements. The goal of APFM certification is to identify mediators whom the divorcing public can trust.

The change in public focus away from litigation and toward other means of reaching divorce settlements has been an important achievement of the mediation movement. It is important to remember, however, that long before the mediation movement was launched, a great majority of divorce settlements were negotiated between adversarial lawyers rather than resolved by judicial decision. It seems silly today to apply the term “alternative disputes resolution” to mediation. For decades it is litigation that has been the outlier, not mediation. Even those conventional attorney negotiated settlements are not litigation, although they can be quite adversarial in nature and often take place in the shadow of actual court cases.

Divorce mediation will continue to thrive and become better and more credible as it becomes more professional. But it is unlikely to fully take over the field of divorce settlements. As divorce mediators become more professional and more holistically oriented, so will divorce lawyers and collaborative professionals. Hopefully all these divorce-related professionals can continue to learn from each other, even as they remain competitive.

This article reflects a somewhat more cautious approach to the future of divorce mediation than if it had been written in the early days of the national divorce mediation movement. The promise of the early 1980’s was never fully achieved, even after over three decades. Instead of a two-way split between the modalities for out-of-court settlements (conventional attorney negotiations and mediation), there is now a three-way split with the advent of collaborative practice. The divorce bar is demonstratively larger and more influential than it was in 1980.

At the 1993 conference of the Academy of Family Mediators, I distributed a circular which warned that unless AFM focused more on the substantive details of divorce settlements, attorneys would continue to dominate the field. I wish that my prediction had not been so accurate. As the new organization, APFM, works to define the knowledge, skills and experience that are required for the title of “professional family mediator”, it is crucial that knowledge of and experience with the substantive options be given a central place in any such definition. Until divorce mediators generally can transcend the dichotomy between substantive options and process skills, mediation will never be fully recognized as the method of choice for the great majority of divorce agreements.