Anyone who has experienced ‘adversarial divorce by Court process’ knows that it is toxic, uncontrolled and uncontrollable, destructively expensive, and that it resolves only legal rights – typically unsatisfactorily – while ignoring the personal grieving and raw disruptions that accompany almost all relationship breakups. This lingering dislocation, pain, and resentment is perhaps the most devastating aspect of contested, adversarial divorce because not only does it fail to heal old wounds, it gouges new ones.
These wounds almost certainly guarantee the next cycle of conflict including battles over custody and visitation of children, and financial support obligations. These disputes perpetuate economic dependency and even poverty, most often upon women, and emotional injury to children. They make both parties unwilling to trust the other and so to be unable to move forward in a proactive and healing way.
Clients have the power to adopt a different experience: One of a controlled, no-court, peacemaking divorce which promises to dramatically reconfigure how former partners deal with and treat each other in a way that may not make them best friends, but will promote and encourage that each party own their respective share of the joint but separate responsibility for moving the family forward.
In this fashion, fathers may begin to have normalized relationships with their children whether they or the mother is the primary custodial timeshare parent; mothers or custodial fathers may actually receive the financial support upon which they depend; and children may find that their parents are no longer involved in a hateful conflict that seems to center around the children themselves.
All of the views expressed in this article apply to the dissolution of Domestic Partnerships as well and to their shared children and interests.
Family scientists have gathered considerable information that suggests that peacemaking solutions to divorce and breakup might offer a brave new option for people transitioning out of relationship. Peacemaking offers a “controlled” alternative to the chaos of adversarial struggle. While peacemaking lawyers are not therapists, the process that peacemaking facilitates is itself entirely therapeutic because it allows both parties to concentrate on their felt interests and the interests of their families. It a “controlled process,” managed by the parties themselves and orchestrated by a peacemaker.
In examining the role of peacemaking in divorce and dissolution of domestic partnership, or how it differs from the traditional manner of resolving legal disputes, it is useful to explore some of the wisdom generated by studies within the mental health fields. These illustrate concepts we might already have suspected to be true or which may resonate for us immediately upon hearing them. Others may seem at first a bit paradoxical.
Studies in the Family Sciences
According to Ahrons (2005, p. 395), “a good divorce has three major objectives: (1) The family remains a family; (2) the negative effects on children are minimized; and (3) both ex-spouses [and former domestic partners] integrate the divorce into their lives in a healthy way.” “Bad divorces are those in which spouses are unable or unwilling to settle their marital related conflicts without enmeshing their children in their divorce drama. Children in these divorces often lose a relationship with one parent (usually the father), are caught in painful loyalty conflicts about their parents, and suffer irreparable emotional damage” (Ahrons, 2005, p. 395). Peacemakers aspire to good, or even great, divorces.
1. Divorce Is a ‘Normative’ Experience for Many Americans
‘Normative’ experiences are those that have become mainstream, and have become a recognized part of the individual and family life cycle. The “realities are that divorce and remarriage are unscheduled life transitions that will affect large numbers of families and alter their developmental life course.” (Ahrons, 2005, p. 381). Even if we don’t experience these events directly, or yet, someone we are related to or whom we know has and will.
Americans are a marrying, divorcing, and remarrying culture unlike any other in the industrial world. While we have all heard that Americans experience a high rate of divorce, it is less well known that we statistically prefer marriage in greater numbers than anywhere else. (Strong, DeVault & Cohen, 2008).
Some scholars have suggested that divorce manifests not so much as a devaluation of marriage but from the negative consequences of idealizing marriage (Furstenberg & Spanier, 1987). For much of our nation’s historical identity, founded as it was by glorifying ‘rugged individualism,’ Americans have viewed marriage and family as the road to individual happiness and fulfillment (Guttman, 1993). Unlike earlier generations, and many other parts of the world, we marry for “love” and we expect our marriage or other partners to bring us happiness. This tends to reinforce an idea that family demands and family unit needs must give way to what we perceive our individual needs to be (Strong, et al., 2008). For many of us those perceived needs change from week to week. There is a dissonance, therefore, between our view of our individual needs and our familial roles. This spills over into divorce. That spillover may blind us to opportunities to reframe and restructure our expectations. Recognizing that this experience exists creates an opportunity for a controlled divorce.
2. Divorce Has Natural and Devastating Consequences Upon Individual Partners
In 1986 sociologist Diane Vaughan invented the term “uncoupling.” She observed “[u]ncoupling begins as a quiet, unilateral process.” One partner, initially, becomes unhappy or dissatisfied with the relationship but keeps those feelings a secret. That person may begin to seek satisfaction, validation, and reinforcement outside the relationship. That partner, as the initiator, may have the benefit of the fore knowledge of what might be coming, and to engage in a process of unspoken mourning that precedes that of the other party in what seems to be an intact marriage.
This phenomenon creates an imbalance of power between splitting couples that can accelerate divorce warfare and negatively impact opportunities for interest based solutions. Adversarial divorce exploits this reactivity. Peacemaking divorce seeks to positively overcome it by admitting the imbalance, creating a container where hurt can be safely aired, and by restructuring, validating, and equalizing the common interests.
Except for the death of a spouse, divorce is the greatest-stress inducing event in life (Halpern, 1975). Separation almost always precedes the legal aspects of divorce, which includes the formal filing for dissolution of marriage or registered domestic partnership and the termination of marital or partner status. Early on in a separation most people’s emotions are at their rawest and most vulnerable stages.
The term “separation distress” has been coined to describe the situational anxiety that people commonly experience. It is a function of the attachments between two people whose self-identities naturally become somewhat fused over time. But those attachments are more than just emotional. Not only does divorce include disentangling the psychic interdependencies between people, it also includes a division of jointly acquired property, assigning support obligations, and the sharing of children and the attachments to these things as well. To believe we can achieve the former in any holistic way without addressing the latter is naïve.
Anthropologist Paul Bohannan (1970) developed a useful descriptive model of the divorce process that may help in understanding the dynamics of the divorce process within the peacemaking context. These six “stations of divorce” are:
While most property acquired during marriage is to be divided between the divorcing spouses and the assumption is that each has made important contributions to the joint estate, child and spousal support is viewed quite differently. Earnings of either party cease to result from a joint venture when parties physical separate, and so the ‘salaried’ former partner is no longer expected to share the half that was once considered due. Parents are rarely equal earners outside the home. One usually generates more dollars, and often that is the man. But he is not expected to contribute in the same way upon divorce and as he did before.
This means that women who are mothers often undertake, whether by choice or not, the greater ongoing parenting burden but at the same time have considerably less financial resources available to do it well. This is one reason why men, freed from the obligation of sharing half their income and the day-to-day child-rearing time demands, generally experience an increase in their standard of living after separation while women experience a decrease (Strong, et al., 2008). This inequality of earning power and dedication to child rearing is equally relevant in many domestic partner dissolutions and is further complicated by the unequal treatment domestic partners receive vis-à-vis married individuals, for instance in terms of federal benefits.
This has profound implications for the divorce process itself, and to the post-divorce relations parents share until children become legal adults and beyond, as well as through the remainder of each parent’s life on some level. When one considers that the emotional divorce and its attendant reactivity can continue indefinitely, a controlled divorce is the only sensible alternative for promoting the best interests not only of children but of the parties themselves.
Following marital separation, most people go through two distinct phases in establishing a new identity independent of the other: Transition and recovery (Weiss, 1975). Transition begins with uncoupling or separation. It is characterized by separation distress, and then loneliness. Researchers have found that in the later stages of this transition people begin functioning in an orderly way again, yet they may still experience episodes of turmoil and upset. Transitioning may take a year or more. Dating commonly begins in this phase as a means of reducing the anxiety caused by separation. Dating creates its own stressors upon the other former partner.
The recovery phase usually begins in the second year and may continue for another one to three years, or more. People tend to have become stabilized, and the raw emotional factors that led to or resulted from the break-up have receded, so that the former partners are not as susceptible to the arousal of intense passions against the other.
Peacemaking divorce offers control over the stages of divorce, and transitioning and recovery because it is not limited by the legal right’s and property/money attributes of family court divorce. Peacemaking facilitators can be educated to be attuned to the substratum of values and needs in a way that is never possible in government supervised divorce, which assist only with custodial and parenting differences.
3. Divorce Need Not Have Devastating Consequences Upon Children
Adversarial divorce does have devastating consequences for children, but peacemaking divorce possibly need not have (Ahrons, 2005). Social scientists have learned that parents who divorce are subject to “inter-generational transmission,” an increased likelihood that divorce will happen to them too (Raschke, 1987; Amato, 1996). For instance, researchers have found that parental divorce increases the chances of a daughter’s marriage ending within the first five years by as much as 70%. Incredibly, if both the husband’s and the wife’s parents have been divorced, these odds increase by 189% (Strong, et al., 2008). This has the effect that for children’s marriages themselves to be successful such children of divorce may need to consciously guard against behaviors that might undermine their marriages (Strong, et al., 2008). How parents model divorce for these children has lasting implications for their children’s success in doing so. Understanding this common reality is transformative for the next generation.
4. Divorce Includes a Major Disruption of Time and Money Resources
Divorce or Partnership Dissolution disrupts access to resources by both parties, but especially so for divorcing parents. Women in heterosexual relationships, as single parents (or child-caretaking partners), are at greatest risk of becoming systemically impoverished (Strong, et al., 2008). Following divorce women are principally responsible for both child-rearing and their own economic support. At a minimum a woman may suffer a significant decrease in her financial condition. Studies have shown that a single mother’s income may decrease by as much as twenty-seven percent (Peterson, 1996; Smock, 1993).
During marriage men often enjoy an enhancement of their earning capacities, which remains intact after divorce (Weitzman, 1985). In contrast, women who do not work outside the home have often quit or limited their participation in the workforce to satisfy family roles and so have not only not improved their capacity for higher paying jobs, but have hurt it. Obviously these are generalizations and there are factors that affect the application of these statements in any given situation. Still, “divorced homemakers have outdated experience, few skills, and no seniority. Thus they may not be ‘equal’ to their husbands at the point of divorce.” (Strong, et al., 2008, p. 505).
Importantly, even when courts order child or spousal support to women studies have shown that most children who are entitled to child support from their fathers never receive it (Huang, Mincy, and Garfinkel, 2005). There may be a number of reasons for this. One determinant of father’s meeting these obligations is their ability to pay. Researchers have found that when child support obligations exceed 35% of a father’s income, he is less likely to comply (Meyer and Barfeld, 1996). Lower-earner fathers are generally required to pay a higher proportion of their income in child support than higher earners, which further pressures the poorest members of our society (Huang, et al., 2005).
There is a stigma attached to spousal support. Many people concede that child support is necessary and proper but feel strongly that spousal support is not, or at best feel ambivalent about it. Proponents of spousal support argue that the woman’s contribution of homemaking and child care activities constitute important contributions to a husband’s or partner’s present and future earnings: Hence, spousal support is viewed as a return on the stay-at-home party’s “investment” in the marriage (Weitzman, 1985).
People can cooperatively reallocate time, money, and other resources between them in a peacemaking divorce, and deal with the resource risk factors that tend to recycle conflict in a proactive way.
5. Peacemaking Is An Entirely Different Paradigm
Forrest S. Mosten (2009b, p. 492) observes:
“A peacemaker is ‘one who makes peace, especially by reconciling parties in conflict.’ Reconciliation is defined as restoring or creating harmony in the family. Family lawyer peacemakers come from all backgrounds, have very diverse personalities, and offer services ranging from litigator to parent educator. Being a peacemaker is not defined by what role one plays in helping families but by how one provides reconciliation and harmony in interactions with clients, colleagues, opposing parties, children, and other members of the family, judges, court staff, witnesses, experts, and many others. In other words, the core values that the lawyer brings to work as a family lawyer define whether one is a peacemaker.”
Mosten (2009b) reminds us of Robert Mnookin’s axiom that traditional lawyers “bargain in the shadow of the law.” This means that lawyers tend to be stuck on right’s based analyses of their clients’ cases where advice and case management is directed to framing strategies in light of what a court ‘might do.’ Interestingly, so does the other lawyer who represents the opposing side, but often with very different opinions about expected outcomes. One side – and typically both – is wrong. The gap between the opposing versions is what fuels an adversarial arms’ race among divorcing litigants. Brinksmanship only escalates. Lawyers who encourage it are not peacemakers. Lawyers who tease out the interests of clients in terms of their financial, emotional and familial context with due regard for the teachings of family scientists have a foundation for peacemaking.
Couples who choose litigation over mediation or peacemaking alternatives are more l likely to continue to use litigation whenever they encounter the inevitable post-divorce conflicts (Ahrons, 2005).
6. How Peacemaking Differs From Court Styled Mediations
According to a review by Peter Salem (2009, p. 371), “the proliferation of services for separating and divorcing families since the early 1970s has been nothing short of remarkable. Since the 1970 introduction of no-fault divorce in California, family courts and their related professional communities have moved steadily, if not swiftly, towards a philosophy that supports collaborative, interdisciplinary, interest-based dispute resolution processes and limited use of traditional litigation.”
At the same time, Salem notes that court derived mediations are becoming increasingly overburdened and ineffective. He states “[t]here is a serious question as to whether court-connected mediation continues to deliver on the promise of family self-determination.” (Salem, 2009, p. 377). “Today, many court-connected mediation programs struggle with growing caseloads, static or reduced staffing levels, and increasingly complex cases; they simply lack the resources to provide five or six hours of mediation that yielded such positive long-term outcomes as those found [in one study] of mediations conducted in the late 1980s.” (Salem, 2009, p. 377).
Given their limited time and resources, court appointed mediators “are faced with difficult decisions about the manner in which to conduct the process. One option is to become increasingly directive, making recommendations, predicting court outcomes and pressuring parties into agreement” (Salem, 2009, p. 378). Studies by social scientists and legal scholars have found that participants question “the fairness of the mediation process when mediators move from suggesting options to recommending settlements and that, increasingly, disputants are claiming that mediators’ aggressive evaluation had the effect of coercing them into agreements.” (Salem, 2009, p. 378, citing Welsh (2004) and Wissler (1999).
It is Salem’s opinion that court ordered parenting mediation needs to be discontinued or seriously overhauled in favor a different but still state sponsored alternative he calls “Triage.” Triage is sometimes referred to as ‘differentiated case management’ by family court service agencies. The idea is to match families to the most appropriate services for them rather than only referring them to a single or more sessions of ‘one size fits all’ mediation.
Triage to family court services is similar to what “unbundling” is to attorney repre-sentation for family law litigants. As described by one of its inventors, Forrest S. Mosten, “[i]n unbundling (also known as limited scope, discrete task representation, or legal coaching), the client is in charge of selecting one or several discrete lawyering tasks contained within the full-service package. The client decides which services the attorney will provide,…” (Mosten, 2009, pps. 59-60).
From a peacemaker’s perspective there is an additional reason why divorce court mediation cannot be counted upon: There is no indication that court-ordered mediation is designed for, or has any real benefit, to the panoply of emotional and psychological circum-tances that affect divorcing parents, especially to the extent that these circumstances are tied into non-child custodial issues.
7. Limitations to the Availability of Peacemaking Services
There are three obvious limitations to the potency and availability of peacemaking services: Cost, availability, and review accountability.
With court mediation services regarding parenting disputes, although services are typically free or included within court filing fees, they are limited by the exigencies of overburdened public systems. To be successful, both court mediation and peacemaking require sufficient time to gain familiarity with each family’s unique needs.
In the absence of free or low-cost outreach programs, possibly sponsored by government and social service agencies, or volunteer activities by peacemaking professionals, only the moderately wealthy or better may have the financial resources to access peacemaking services. It is possible that by publicizing the benefits to family law contestants and divorce disputants that those most affected will themselves see the ultimate long term financial and emotional benefits of engaging in a longer process which seems expensive in the short-run. Family life educators, or peacemakers with family life education [FLE] training, might play a facilitative role in getting the word out. Indeed, some FLE authors have begun to address this overlap (Hawkins, Carroll, Doherty, & Willoughby, 2009).
Another limitation is the availability of peacemaking professionals themselves, and how to find them if they exist in any given locality. We need more peacemakers. Internet based webcam mediations are worthy of exploration and consideration where peacemaking resources are not otherwise available nearby.
More information peacemaking resources can be obtained from the following websites.
• www.Mediate.com Mediate.com is a source of information about mediation and mediators.
• www.CuttingEdgeLaw.com CuttingEdgeLaw.com is dedicated to being a mindfulness source for integrating personal and spiritual values in resolving family law and other legal difficulties.
• www.Iahl.org The International Alliance of Holistic Lawyers envisions a world where lawyers are valued as healers, helpers, counselors, problem-solvers, and peacemakers. Lawyers model balanced lives and are respected for their contributions to the greater good.
• www.collaborativepractice.com This site is by the International Academy of Collaborative Professionals. The heart of Collaborative Practice or Collaborative Divorce is to offer you and your spouse or partner the support, protection, and guidance of your own lawyers without going to court.
A third limitation deals with the ethics of peacemaking: Peacemaking is unregulated, as is mediation in most jurisdictions. There are no mandatory ethical standards other than as apply to lawyers, or mental health professionals, generally. Voluntary ethical models do exist, including the ACR Standards of Practice for Family and Divorce Mediation.
The family sciences offer an approach for facilitating conciliation of the seemingly conflicting interests and needs of divorcing couples, and those dissolving domestic partnerships, that may be adapted by legal and other professionals to the task of mediation and peacemaking.
By understanding the crisis of divorce, family scientists may help educate lawyers, and the clients themselves, to become peacemakers. Children and marginalized spouses are certain to benefit from such a process. Using interest based negotiations for resolving disagreement and overcoming relationship reactivity, peacemaking by legal specialists with mental health training may foster settlements that people are more likely to honor. If so, this can support relationships between parents and children and increase the likelihood that they will receive needed financial assistance.
Even couples without children will benefit from this process, since mental health research shows they are likely to become better integrated and to live more satisfying lives.
Ahrons, C. (2005). Divorce: An unscheduled family transition. The expanded family life cycle , pps. 381-398. Carter, B. and McGoldrick, M. (Eds.) Boston: Pearson Education Company.
Amato, P.R. (1996). Explaining the intergenerational transmission of divorce. Journal of Marriage and the Family, 58: 628-640.
Bohannan, P. (1970)(Ed). Divorce and After , New York: Doubleday.
Furstenberg, F.F., and Spanier, G. (1987). Recycling the family: Remarriage after divorce. Newbury Park, CA: Sage.
Guttman, J. (1993). Divorce in Psychosocial perspective: Theory and research. Hillsdale, N.J.: Lawrence Erlbaum.
Halpern, H.A. (1975). The crisis scale: A factor analysis and revision. Community Mental Health Journal, II: 295-300.
Hawkins, A.J., Carroll, J.S., Doherty, W.J., and Willoughby, B. (2009). A comprehensive framework for marriage education. Family life education: integrating theory and practice. (Bredehoft, D.J., and Walcheski, M.J.,eds). Minneapolis, MN: NCFR.
Huang, C-C, Mincy, R.B, and Garfinkel, I. (2005). Child support obligations and low-income fathers. Journal of Marriage and the Family, 67, 5: 1213-1225.
Meyer, D.R., and Bartfeld, J. (1996). Compliance with child support orders in divorce cases. Journal of Marriage and the Family, 58, 1: 201-212.
Mosten, F.S. (2009). Collaborative divorce handbook. San Francisco, CA: Wiley & Sons, Inc.
Mosten, F.S. (2009b). Lawyer as peacemaker: Building a successful law practice without ever going to court. Family Law Quarterly, Vol. 43, No. 3: 489-518.
Peterson, R.R. (1996). A reevaluation of the economic consequences of divorce. American Sociological Review, 61: 3.
Raschke, H. (1987). Divorce. Handbook of marriage and the family. Sussman, S. and Steinmetz, S. (Eds.) New York: Plenum Press.
Salem, P. (2009). The emergence of triage in family court services: The beginning of the end for mandatory mediation? Family Court Review, 47, 3: 371-388.
Strong, B., DeVault, C., and Cohen, T. (2008). Coming apart: Separation and divorce. The marriage and family experience: intimate relationships in a changing society (10th ed). Belmont, CA: Thomson Higher Education.
Smock, P.J. (1993). The economic costs of marital disruption for young women over the past two decades. Demography, 30:3, 353-371.
Vaughn, D. (1986). Uncoupling: turning points in intimate relationships. New York: University Press.
Welsh, N.A. (2001). The thinning vision of self-determination in court-connected mediation: the invisible price of institutionalization? Harvard Negotiation Law Review, 6, 1-96.
Weiss, R. (1975). Marital Separation. New York: Basic Books.
Weitzman, L. (1985). The divorce revolution: The unexpected social and economic consequences for women and children in America. New York: Free Press.
Wissler, R.L. (1999). Trapping the data: An assessment of domestic relations mediation in Main and Ohio Courts. Columbus, OH: Supreme Court of Ohio.
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