Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
Mediate.com

Professional Divorce Mediation and The Future

by Marilyn McKnight
May 2015 Marilyn McKnight

In 1976, I was a Social Worker in Hennepin County, Minnesota, Child Protection Services (CPS), assigned to the “Child Neglect Unit” in the northwest suburbs of the county. Many of the families were referred to CPS by school social workers, based upon concerns registered by teachers that a child or children in a family were being neglected. They almost invariably described changed behaviors in children who were previously pretty average, non-problematic students, but who had recently become sullen, distracted, withdrawn, or angry and were acting out. After some investigation, I found the clear common denominator in more than a few of these matters was a divorce being contemplated or in progress. Mom was often ashamed, depressed, and worried about money; she had little energy left to deal with the children. The few fathers I was able to meet with were frustrated, often angry, and sad. They had all but given up on “visiting” their own children in accordance with the court order, “every other weekend and Wednesday evenings.” It became patently clear that the divorce was hard enough, but was being made unnecessarily far more difficult and painful for all concerned than it needed to be.

At that same time, my husband, Steve Erickson, was a young lawyer, in a small firm in Minneapolis with colleagues from law school doing a lot of divorces. He was frustrated because whatever he did for his clients, they were never satisfied. Sharing stories at our dinner table, we both realized the devastating impact divorce was having on families.

That summer, we heard Jim Coogler and Morton Deutsch speak at a conference in Minneapolis on Divorce Mediation. It was absolutely fascinating, and life changing! We were young and idealistic with two young children, buying our first home, and we decided to become divorce mediators!

We started our practice with a small group: two lawyers, two social workers, a therapist, a teacher and a minister. Jim Coogler returned to Minneapolis to spend one day with us teaching us how to mediate a divorce. He gave us his forms, advice, and know-how about mediation. So we began by putting an ad in the newspaper that read: “Divorce Mediation: Less Cost, Less Stress, Less Time” – and operated out of our living room. By 1980 our mediation group had shrunk to Steve and me, and Steve had quit practicing law altogether, and was mediating full time. I continued my social work job half time until 1983, when we began supporting ourselves entirely through the mediation practice and training mediators.

In early mediation practice, we insisted that our clients each be represented by lawyers who did not always attend sessions but advised their clients between sessions. One of those lawyers was Stuart Webb, a friend and a supporter of divorce mediation from the beginning. As time went on, more and more clients asked if they had to have attorneys, and we responded, “That is your choice”. There were attorneys at that time who would represent only one of them, draft all of the legal documents and file with the court.

In the mid 1980’s, one couple asked if they had to follow the child support guidelines or instead, could they just use a joint checking account to pay the children’s expenses and each contribute their “child support” to that account and each use the account for the children’s agreed upon needs in the children’s budget. Thus began “deviating from the child support guidelines” in favor of sharing the children’s agreed upon expenses. Parents also began to put additional agreements in their divorce papers about how they were going to manage the children according to a schedule of when they would live with each parent.

We saw in our mediation practice that given a choice, parents would choose to co-parent children after divorce – rather than fight for custody. We encouraged parents to design what would work best for them and their children, so there grew to be more and more details in parenting plans to govern the raising of children in two homes post-divorce.

Divorce mediation was continuing to evolve from the early days of Jim Coogler when he and his colleagues began to mediate. The first national divorce mediation training occurred in 1980. In those early days, Coogler’s rules called for one advisory attorney. Further developments emerged from clients that included child support deviations, parenting plans, and pro-se mediated divorces that occur more frequently today. I predicted in 1985 that divorces would be out of the courts by 1990, based upon the progress I had experienced with divorcing couples taking charge of their decision-making, and their future through mediating their divorces. Of course that was a premature prediction. As divorce mediation grew, so did the involvement of lawyers. Many lawyers became trained in mediation, and many grasped that the role of a mediator worked better when mediating with both spouses together in the room. However, other lawyers practiced a form of settlement conferencing and called it mediation. In the ‘90s divorce mediation, as originally designed, was becoming infused with practice that did not adhere to the Family Mediation Standards of Practice (AFM, ACR & APFM) regarding client self-determination in particular, and mediator influence in the decision-making.

In the late 1980s, I served on the board of the Academy of Family Mediators (AFM), when we began to consider certification of divorce mediators. I favored developing a competency-based certification of divorce mediators through the Academy. The board was divided on whether to proceed. In 1992, I represented AFM at the Test Design Project meetings held by the National Institute of Dispute Resolution (NIDR) in Washington, DC where we looked at competency based testing of mediators. While divorce mediators were the most advanced in the development of their craft, all types of mediation practice were represented. In the end it was decided that the profession could not be defined, and therefore, certification was not possible. Interestingly, Family Mediation Canada (FMC) continued to ponder certification and began to develop a test in the mid-nineties, and to later certify mediators who passed the test. Their work is highly regarded today and used by many organizations whose Quality Assessment Programs (QAPs) have been approved by the International Mediation Institute (IMI) in the Hague, Netherlands.

Divorce mediation practice has certainly evolved since 1977. Now couples actually shop around to find the right divorce mediator for them. But the core of the mediation practice has remained mostly the same. From Coogler’s 1978 book “Structured Mediation” to our 2003 book on client-centered mediation, A Practitioner’s Guide to Mediation: A Client-Centered Approach, the core principles continue to be: a) serve the family before serving the court; b) the couple’s fairness is more lasting than the ever changing and inconsistent state laws; and c) self-determination of the couple trumps the paternalism of the divorce industry.

The core value and purpose of mediation -- preserving peoples’ self determination to take control of their future by making decisions for themselves and their children as they re-structure their families in a divorce or in other circumstances that require that action -- has been critical to the growth of professional divorce mediation practice.

Yet, I am an optimist. I do admit to having been premature in pressing for certification of divorce mediators, and in expecting, years ago, that that divorce would be removed from the Court system by 1990. But, I am also an idealist. I continue to believe in progress, and, in difficult life issues such as divorce, the necessity of providing a process for treating human beings with respect and dignity.

Two years ago, three things happened that have caused me to renew my hope, which I predict will significantly impact the future of divorce mediation practice: First, a group of professional family mediators formed the Academy of Professional Family Mediators (APFM) with the stated intentions and goals being to serve the educational needs of family mediators, educating the public about family mediation and developing competency based certification of family mediators. (https://www.apfmnet.org)

Second, I recently convened a meeting of therapists, lawyers and other divorce professionals in Minnesota to look at the possibility of designing a divorce track outside the court. After almost three years, we now have a bill in the Minnesota Legislature, titled the “Cooperative Private Divorce” bill, which allows divorcing couples to plan and implement their divorce settlements and file them with the proposed Minnesota Office of Collaboration and Dispute Resolution. The legislation includes provisions to maintain the privacy and confidentiality of divorce agreements, safeguards that address domestic violence issues that may arise, and to consider the best practices for parenting children. (The full text of Minnesota H. F. 1348 can be found at: https://www.revisor.mn.gov/bills)

Third, in 2013 the Professional Mediation Board of Standards (PMBS) was incorporated as an organization intended to function separately from any membership organization. It grew out of the Academy of Professional Family Mediators’ support for testing and certification of divorce mediators. Once funded, the Board will be hiring a test design company to create a certification process that is reliable, valid and legally defensible. Once implemented, this process could lead to the licensing of Divorce Mediators, and the recognition of Divorce Mediation as a profession. Arguably, certified or licensed divorce mediators, viewed as professionals, would give the public, legislators, lawyers and courts greater confidence in their services and make them more willing to consider a private divorce process. Today it really is a “Back to the Future” for me. Divorce Mediation will become the primary way to divorce. Divorcing families will become healthy and resilient, no longer harmed by adversarial divorce. Divorce will no longer be a contest. And perhaps, when families divorce constructively the children will no longer be so negatively affected by divorce. Perhaps even our culture will be positively impacted by divorce mediation such that people will learn to negotiate and mediate their major differences more constructively. And in my optimism, I believe that divorce mediators may have an impact on world peace. After all, Mother Theresa once said world peace begins with the family.

Biography


Marilyn McKnight has practiced exclusively in the field of mediation since founding Erickson Mediation Institute in 1977. A former member of the Board and former President of the Academy of Family Mediators (AFM), Marilyn served on the Test Design Project for the study of mediator certification. In 1996, she and Stephen Erickson were awarded AFM’s Distinguished Mediator Award for their outstanding contributions to the field of mediation.  Marilyn served as the president of the Minnesota Chapter of ACR when it merged with the state mediation association, and continues to serve on the board of the merged organization, Conflict Resolution Minnesota.  She has co-authored five highly successful books on mediation and is an adjunct professor at the William Mitchell College of Law.



Email Author
Additional articles by Marilyn McKnight