My son Geoffrey loves the song "Revolution Calling" by the 80’s big hair band Queensryche. It a classic formulaic rocker in every way…over-emoted, predictable, and guaranteed to get in your head the entire day. Be forewarned.
But this article isn’t about hair bands… its about mediation, and my observation that there is a revolution coming in the world of divorce. More people are choosing to go it alone with a pro se approach or using a mediator to exit their marriage. And it appears there may be a time where it will seem old fashioned for people to choose a lawyer and litigate their socks off. Maybe.
It is not surprising. Let’s face it…if the divorce process were looked at as a product on the shelf at Target no one would buy it. It is costly, time consuming, and the outcomes are often dreadful; with broken relationships and bank accounts and inequitable and poorly designed settlements. There has to be a better way, and I think the current trend suggests that the mediated or collaborative approaches are going to fill the need over time.
But if we as mediators are truly dedicated to giving couples the best process for exiting their marriage I suggest there is a new approach to consider. One where we address the reality that divorce is not a discrete event that is largely the hammering out of an agreement and moving on to the next. For the client it starts months or years before the first meeting, and ends months or years later.
A Confusing Divorce Experience in Need of Coordination
The divorce experience starts early…perhaps in the therapists office and the Wednesday reading group where the decision is made…quietly… to move on. And once the papers are signed there are months of recovery, both financial and psychological, until a sense of "normal" is achieved. The whole process can take several years from start to finish, and involves a host of professionals; psychologists, lawyers, mediators, financial people, and a number of bit players. All brought in by a divorcing person or couple who is under the most severe stress of their life and not in the best mindset to make thoughtful and rational decisions, or ask for the right help. There is little coordination. No divorce "Sherpa" who is there to escort them through the process. So it is no small surprise that the outcomes are varied and often poor.
I don’t have the complete answer. But I do believe that the more we can be part of the preparation and recovery part of the divorce process, and have a coordinated approach among professionals which guides the client every step of the way, the better off divorcing couples will be.
Do We Need a Divorce “Sherpa”?
Perhaps we do need a divorce "Sherpa". Someone who would be the lead person in coordinating the talent needed to help someone through the process in a step-by-step fashion. In the same way there are health care advocates who will guide you through the maze of the healthcare system, our divorce Sherpa would make sure the client has everything they need to get the best outcome possible.
The divorce Sherpa would work to ensure my client had the people they need to have great support in the three main domains of divorce: the legal, psychological, and financial; and a mediator to guide the couple in crafting an agreement right for them. Each professional would sign on to the idea of being part of a team effort to give the individual or couple the help they needed to navigate through their divorce from preparation to recovery. The psychologist would assist in parenting plans, relationship issues, and mental health, the lawyer would handle all legal matters, and the financial person would work the numbers in all phases making sure there was informed financial decision making. A team approach. Total support and guidance from initial divorce preparation to recovery. What a concept.
Splitting Divorce Services into Preparation, Negotiation, and Recovery Phases
So is it possible to pull this off? Will people buy it? I have no idea. There are a host of habits, beliefs, and systems in place that make it difficult to make it a quick reality. But I have a pretty good handle on how I would play my role as the Certified Divorce financial guy in this process. I would have three distinct advisory services; a "before" service that would help them understand and organize their financial data, a "during" service that would help them make informed decisions during negotiations, and a recovery service that would help get their financial life back in the best shape possible. (In fact, that is the way I have organized my practice.)
In the same way, the psychologist would have a "before" service helping map out potential parenting approaches and creating a life vision for the future. They would be an integral part of designing a workable parenting agreement during negotiations, and would provide counseling and deal with helping children acclimate after the divorce was finalized. The attorney, who already has a core role in the "before" and "during" phases would play a role in the "recovery" process working with the financial specialist as needed to put the clients estate plan house in order.
From the client’s standpoint they would feel more supported the entire way through the divorce experience. There would be fewer surprises, and mistakes, and faster recovery. They might even have better relations with their ex and their children.
Is Mediation Ready to Change? Should It?
Of course, it is the mediation process which holds the key to making this all work. The basic mediation approach would remain the same, but the other advisors would be more involved in a less ad hoc fashion, especially in the preparation phase. If the parties are financially and legally up to speed, have a sense of the potential agreements that would work for them, and have mental clarity on their needs and goals, our odds of successful mediations can only increase.
Yes, I know nobody works this way…and divorce can be acrimonious and too messy and unpredictable for this approach. But perhaps we can take a step by creating an affiliation of professionals who would work towards the goal of "start to finish" support, and would recognize that from the client’s view the divorce experience lasts a lot longer than we are typically involved. And that we have a role and responsibility in helping them through the whole ordeal…the whole way through.
And perhaps the time has come for divorce Sherpas. I am confident that if we respond well to the need for a more coordinated approach, the less we will need someone to escort our clients through the maze of divorce.
I would love to hear feedback on this concept. I am somewhat new to the mediation game and am a financial person by heritage, so please tell me where I am off target in my thinking.
Larry Fong talks about different processes of mediation trainings around the world and questions what types of trainings are the most effective.By Larry Fong
James Coben discusses teaching law students skills of how to be an advisor to their client which involves alternative dispute resolution training.By James Coben