Attorneys often fuel the fire of divorce war by escalating animosity through and throughout litigation. Many fail to consider family system dynamics, or the needs of children when “advocating” for their clients. By discouraging clients from directly communicating with their spouse about divorce issues, spouses miss opportunities to find common ground. Mistrust and misunderstandings caused by litigation can turn spouses into permanent enemies.
Our court-driven culture further fuels divorce war. The idea that spouses need aggressive attorneys and should expect to spend a fortune fighting out their divorce has become a twisted norm. The court system itself throws gasoline on the flames. Courts are backlogged and generally inflexible. The “system” is unable to consider the deeper needs of spouses and their children. Destructive custody battles become a contest to prove who is the better parent. Children suffer most.
Therapists and professional mediators are equipped with a divorce-war fire extinguisher. More so, working together creates an opportunity to prevent the first shots from ever being fired.
When mental health professionals encourage divorce mediation, instead of adversarial litigation, families avoid an abusive court process that damages the well-being of children.
When divorce mediators encourage spouses to seek individual counseling, interventions to aid in marriage closure, or family therapy, we help them acknowledge that the trauma often generated through a divorce experience can benefit from therapeutic interventions for deeper healing. Interventions by mediators and therapists working collaboratively provides a divorce process in which spouses can salvage and improve their co-parenting relationship, if only, for the sake of their children.
UNDERSTANDING DIVORCE MEDIATION
Mediation keeps spouses in control of their own divorce terms and co-parenting plan. Litigation, in stark contrast, forces spouses to give up control of their family’s future to a harsh court system and the decisions of a judge.
In mediation, a neutral mediator meets with spouses, typically for one to six sessions, depending on several factors. Most often, no attorneys are present, but attorneys may also attend. Spouses are encouraged to get legal advice during the process. The mediator identifies each issue involving the division of property and debts, spousal support, child support, and parenting issues—including parenting time and child custody. As each issue is identified, the mediator advances productive communication and interest-based negotiation between spouses.
Eventually, the mediator helps spouses reach agreements on all issues, which will become the terms of their final divorce judgment. The entire mediation process is confidential, unlike the court process, where information is subject to public record.
Overall, mediation embraces the idea that while spouses do not get along well enough to be married, they can and must still cooperate as co-parents. By separating the two distinct roles, mediators create the space for parents to make agreements that are best for their children’s development. Parents also consider their own personal wants and needs.
A thoughtful parenting plan might include agreements of weekly time-sharing, and arrangements for holidays, vacations, and summertime. Agreements about children’s health issues, safety, education, and religious upbringing will be addressed. Agreements about how co-parents will communicate with each other and about one another after divorce are the bedrock of any meaningful parenting plan. In this way, mediation lays the foundation for healthy co-parenting. Unlike litigation, which escalates long-term animosity, mediation pre-empts future fighting in court.
DIVORCE MEDIATION RESEARCH BY MENTAL HEALTH PROFESSIONALS
The two most destructive divorce consequences for children are the absence of an ongoing relationship with one parent and the continued conflict between parents after divorce. Parents’ failure to stop fighting and end their high conflict relationship is the central cause of children’s poor adjustment five years after divorce (Wallerstein and Kelly, 1980; Cummings, E.,Davies, 1994; Kelly and Emery, 2003).
Parental high conflict prevents children from accepting and integrating the divorce. It also results in parents bad-mouthing one another to their children, which can cause serious long-term psychological issues.
Research published by Dr. Robert Emery (2001), found that parents who mediate their divorce appear to have substantially better relationships with their children than parents who litigate in court. A startling 54% of children from mediated divorces had weekly phone contact with their non-resident parent twelve years later, compared to only 14% of children from litigated court divorces.
Child psychologist and pioneer child custody mediator, Dr. Donald T. Saposnek, has long implored parents to stop fighting over their children in court and instead use mediation to decide child-related issues and to begin healthy co-parenting practices. In his classic text, Mediating Child Custody Disputes (1980;1998) he explains that when parents maintain control over child-related decisions, children gain a “sense of stability, security, and trust that their parents love them, are taking care of them, and are still united in their roles as parents.” Thus, “children are better able to move through the divorce trauma and accept the new organization of the family.”
THE IMPORTANCE OF RECOGNIZING CHILD STRATEGIES AND BEHAVIORS
Therapists and mediators are uniquely positioned to inform parents how their children’s coping behavior can innocently escalate divorce conflict. Normalizing child behavior pre-empts misunderstandings that contribute significantly to divorce wars. This approach may transform their perspective, shift blame to awareness, unite parents in common goals, and turn a family break-up into a healthier family reorganization.
Children have a limited ability to understand divorce and limited ways of communicating their needs. Dr. Saposnek explains that their confusion and emotional turmoil generate very common child coping strategies. Parents often misunderstand their child’s questionable behavior and blame the other parent for it. Misinterpretations of their children’s behavior become the central arguments that attorneys use in court to prove who is the “better parent.” Too often, Judges make custody decisions based upon this unhelpful and inaccurate evidence.
Dr. Saposnek has identified at least five common misinterpreted child coping behaviors, each with their own underlying emotions and functions. Each, if properly recognized by parents, could pre-empt an explosive custody battle, forever changing the course of children’s health and well-being. Several seem to appear with great frequency.
- Reuniting behavior
Reuniting behavior stems from a child’s desire for their parents to get back together. Children fear abandonment and have anxiety about their survival when their parents are separated. This can result in children developing symptomatic behavior so that parents remain together to solve the child’s problem. Children might also tell one parent how much better the other has been since the separation in an effort to bring them back together. However, this only serves to cause increased resentment between parents.
A very young child might revert to bedwetting, thumb-sucking, and excessive crying. Mom may misinterpret this as the child feeling insecure and uncomfortable with Dad. Dad may misinterpret this as the child missing him very much and Mom not caring well enough for him—ammunition for the first shots in a custody battle.
- Separation distress
Separation distress can happen each time a child is transferred from one parent to the other. Children often cry and resist leaving a parent. This can result from the emotional loss of leaving a parent, and generally indicates a close bond with both parents. Yet, a well-intentioned mother will often misinterpret the behavior as evidence that the child prefers to stay with her. An exasperated father will often assume that Mother’s bad-mouthing him is responsible for their daughter cries when she comes to him. Both parents will fight for increased parenting time based on false assumptions.
- Testing love and proving loyalty
Children will inherently test the extent that each of their parents love them throughout the divorce process, as well as attempt to prove their loyalty to a parent. Testing love and proving loyalty are both child strategies that stem from the same fear of rejection and potential neglect they perceive possible in the absence of a nuclear family unit.
Parents can be emotionally unavailable during and after divorce. Children may “test the love” of a parent by showing and telling a parent how much they love them. If Mom is on the receiving end, she might misinterpret the increase in affection as evidence that the child does not want to live with Dad. In turn, Dad may accuse Mom of poisoning the child with negative communication about him.
Proving loyalty occurs when a child feels she cannot love both parents, if they do not love each other. This results in the child sacrificing, at least temporarily, the relationship with one parent, thus proving loyalty to the other. Often this means siding entirely with one parent and cutting off the other. Misinterpretations of the extreme behavior can cause both parents to seek sole custody of the child in a bitter court battle.
- Protecting self-esteem
When children hide their feelings about the divorce, refuse to talk about their emotions, or deny they feel anything about the circumstances, children are likely attempting to protect their self-esteem. Parents can misinterpret a visible lack of emotions as the child lacking significant feelings about the divorce, which is never the case.
When parents vent their anger toward children, this can trigger other self-esteem protections. Children will internalize feelings, often resulting in psychosomatic illness. Both parents blame the other for the child’s anxiety or withdrawal.
- Protecting their parents’ self esteem
Children may naturally seek to comfort their parents during the difficulty of a separation. The instinct comes from love and empathy for their parents’ pain, but is triggered more so in the interest of their own emotional survival. Because children need emotional security and stability from their parents and in part, out of fear of emotional abandonment, children may attempt to boost both parents’ self-esteem.
In a typical scenario, a young child may tell Mom that she wants to live with her, and also tell Dad that she wants to live with him. Both parents will interpret the behavior as the child surely wanting to live with them and seek parenting time and custody in court. If parents understood this common occurrence, and communicated with one another about it when it happens, open to the possibility that a child coping strategy may be at play, a potential custody battle may be avoided.
Imagine if therapists and mediators in your community were empowered with an understanding of normal child behaviors during divorce transition and freely imparted that information to parents. Educating parents about their children’s normal behavior will reduce blaming and rightfully direct focus attention and sensitivity on how to best respond to their children’s needs. The results preempt and diffuse conflict and help to prevent devastating divorce wars.
PARTNERING TO ENCOURAGE AND ADVANCE HEALTHIER DIVORCE
Divorce is a “family matter.” It is a long-term emotional process, more so than a legal or financial event. Family matters are best resolved with an approach that considers how everyone’s actions affect their children and the family unit. Divorce is no different. Therapists and mediators can inspire healthier perspectives that result in better choices for parents, children, and families.
Mediators and therapists should get to know one another within their communities. We ought to understand each other’s distinct roles. We should be supportive of one another, and, in turn, be available to support each other’s clients. Our mutual engagement will only serve to strengthen families, improve the well-being of children, and create healthier relationship dynamics where they are desperately needed.
Mediators are wise to provide therapeutic resources to their clients for whatever need may arise. When mediating, clients are unsure of proceeding with divorce, mediators should refer to local marriage counselors. When clients require individual therapy, marriage closure therapy, family therapy, or child counseling, mediators should refer to local specialists whom they know and trust. Sometimes, mediating clients need support during mediation. We have seen intensive marriage closure therapy—during mediation—result in breakthroughs that led to complete settlement.
Mental health professionals are wise to inform their clients of the basic process, goals, and benefits of divorce mediation. Encouraging mediation can be the most impactful advice a professional can give to those considering or involved in divorce. Health professionals should provide referrals to trained family mediators whom they trust.
The alliance of therapists and family mediators is a necessary partnership. We share a common goal to help individuals and families through their most challenging moments. Our collaborative interventions can shield families from the unnecessary emotional, financial, and legal casualties of divorce war. As we strengthen our partnership, we will shift family conflict away from the courts toward professionals and processes that lead families to healthier families and futures.
Michael Aurit, JD, MDR, is a professional divorce and family mediator, attorney, and Co-Founder of The Aurit Center for Divorce Mediation in Scottsdale, Arizona. He is an adjunct professor at The Sandra Day O’Connor College of Law at Arizona State University. He serves on the Board of Directors of The Academy of Professional Family Mediators. He is a former Fellow of The American Bar Association Section of Dispute Resolution. Michael is also an active member of The Association for Conflict Resolution, and the Ethics Chair of The Maricopa County Association of Family Mediators. He is a member of the State Bar of Arizona and State Bar of California. He holds his Juris Doctorate from Pepperdine University School of Law and Masters Degree of Dispute Resolution from the Straus Institute for Dispute Resolution at Pepperdine. To learn more about Michael, visit AuritMediation.com or contact Michael at email@example.com
Karen Aurit, LAMFT, is Co-founder and Director of Mediation Services at The Aurit Center for Divorce Mediation. She is a member of the Arizona Association of Marriage and Family Therapy and the Association of Family and Conciliation Courts. She holds her Bachelor’s Degree in Psychology from Arizona State University and Master’s Degree in Clinical Psychology, Marriage and Family Therapy from Antioch University in Los Angeles. She also holds her Mediation Certification from The Straus Institute for Dispute Resolution at Pepperdine Law. Karen background is informed by mindfulness theory, which focuses on stress reduction. Contact Karen at firstname.lastname@example.org