Divorce Mediation 101

Angry wife showing bills

By Dan Blair, a marriage counselor and family counselor.

Would you say your “soon-to-be-ex” is reasonable? Can you talk to your “ex” about a problem and focus on solutions instead of blame? If so, especially at the earlier stages of divorce, you may be in the minority. Divorce magnifies communication problems in the relationship at the time of divorce due to the perception of threat and stress. Many rely on attorneys, and rightly so, to do their communication.

Divorce mediation, on the other hand, can work hand-in-hand with attorneys. Many times mediation can resolve issues that can be resolved without attorneys. Attorneys are recommended to review all agreements. Divorce mediation focuses on interest-based proposals and counter-proposals; attorneys also focus on protecting and arguing for legal rights. Litigation can be time-consuming and expensive, though may be necessary.

A skilled divorce mediator gives two people the chance to make agreements while the mediator serves as guardian of the communication process. While a mediator does not take sides, make decisions, or advise clients, a divorce mediator does not allow poor communication and problem-solving get in the way of potential agreements. Mediation values confidential self-determination based on full disclosure of all relevant information. Without these elements, one has to resort to the legal system.

How to Communicate

Arguing points and counter-points tend to generate more heat than light. Mediation involves each side stating the facts they believe are true, but debate is limited. Anticipating anger is important in controlling temper.

One or both sides can be exasperated by the other person’s position, and hearing unworkable proposals, but if the goal is not to change the other person’s position, and instead make counter-proposals based on the other’s interests, more solutions are possible. The response to a proposal is either “yes,” “I’ll think about it,” or a counter-proposal. Questions are welcome; personal attacks are not. Self-confidence is needed to reduce defensiveness. Patience is needed for a good outcome.

Other communication rules include “Refrain from blame,” and don’t interrupt, raise your voice, or point fingers. Avoid “You” statements, such as “You always…” or “You never…” Use “I” statements. Ask to take breaks, to feel refreshed or get advice.

Positive Outcomes

Divorce mediation is associated with positive outcomes. It can reduce the negative effects of divorce on children. Children are most affected by parental unhappiness, conflict and anger. Making decisions in the best interest of children is a protective factor from the harm that can come from divorce.

Mediation is also helpful for the participants, and with agreements comes increased satisfaction with the outcome on both sides, compared to litigation alone. Mediation also reduces the chance of returning to court after divorce, and overall cost.

Mediation can be used for all or part of a dispute. Mediation may also be the most flexible way to customize agreements based on your unique situation.

Mediation sessions aim to resolve:

Child(ren)’s living arrangments
Parenting schedule
Holiday/Vacation schedule
Parental decision-making process
Child(ren)’s activities and costs
Insurance and medical expenses and other child-related issues
Property Division (including house, cars, etc.)
Assets and Liabilities
Spousal support
Retirement plans
Business issues
Tax issues
Any other issues of concern

Parenting Decisions

One of the primary decisions made in the best interest of the child involves sole or joint custody. A sole custodian means that the relationship between the parents is too conflicted to make decisions in the best interest of the children.

A joint custody arrangement means that co-parents can generally work together. Parents need to work together to determine the needs of the children, like appropriate medical care, child care, parenting time, use of holidays, vacations and other special times, location of the parent’s homes, and educational and religious training. Expenses need to be agreed upon like medical bills, child support, school fees and extracurricular activities, and saving for college.

Protecting Children

Protecting the children from the harmful side of divorce is often neglected, sometimes unintentionally. The goal should under most circumstances should be consistent and calm involvement from each parent in each child’s life. Most children on some level wish for a relationship with both parents. Each parent can take part in not only providing financially but also providing influence on moral, social and educational development. Ideally, contact and affection would be unhampered and each parent would not get in the way of the child’s own developing sense of perception, and feelings about the other parent. Parents would not criticize each other within hearing range, or to put the kids in the middle by making them messengers (delivering positive or negative messages can feel like a burden to kids, when the responsibility to communicate belongs to the parents). Another rule to follow is to not tell the kids about future plans that will affect the other parent without talking to the other parent first.

Financial Decisions

The other area of importance is the financial side. Many decisions have to be made including the value and disposition of the marital residence, vehicles, bank accounts, retirement accounts, stock options, bonuses and other investments. Each participant should gather information from an attorney or tax accountant specializing in divorce to understand the implications of one’s financial decisions, for example, on tax filing. Mediation is not a substitute for independent legal, financial or other professional advice and all parties are encouraged to be fully informed about the decisions for which they are ultimately responsible. All terms of a settlement are non-binding until they are put into a written agreement, usually by an attorney and entered by the court. One can go to the self-help office of the court and file pro se, but it is not usually advised. Divorce mediation allows for direct problem-solving with a neutral party, focuses on effective communication to make parenting and financial decisions that benefit both children and parents, and aims to reduce repeated visits to court.

Success with Supervised Visitation

Father-Son

By Dan Blair, a marriage counselor and family counselor.

Supervised visitation is centered on maintaining or building a relationship between child and parent. If both parents provide a clear show of support for the importance of a relationship with both parents, the positive effects on the kids over time is powerful. It says that the kids are more important than the parent’s differences. In the case of domestic violence, abuse or neglect, kids and both parents would need to be prepared by a counselor who has been trained in domestic violence, abuse and neglect. Supervised visitation is about parents working together with a neutral third party to create a sense of safety. It gives the kids a sense of peace that parents will be okay and that a relationship with each parent will be okay. It is a chance at positive, consistent and calm interaction.

During the time together, activities and conversation about a variety of topics is facilitated. While it is not counseling or therapy, visitation supervised by a counselor has the advantage of available interventions designed to redirect communication in such a way that it is productive and resolves conflict. All participants agree how to express themselves, to not talk negatively about others, and avoid asking children to convey information about the other parent. It is in the child’s best interest that neither parent does not intentionally do anything to impair the natural development of the children’s love and respect for the other parent.

Research indicates that not only do children benefit from a relationship with both parents, but in retrospect, children wish they had more time with the non-custodial parent and that children can still feel rejected by estranged and alienated parents. Adult children reported that they wish someone had helped them with their relationship with the “other” parent.

It is essential that both parents are at ease with this process. The emotions of the parents affect the experience of the children. “It is easy to see how toxic parents can become in their ability to serve as a secure base or a haven of safety when they get so preoccupied with their own needs, pride, shame, or selfishness, or their anger at the other parent over betrayal or humiliation. How can I comfort my child when I myself am frightened? How can I tolerate my child having successes under your supervision if it is all about me, not about them?” (Everett Waters). Addressing each parent’s concerns to reduce anxiety helps increase success with supervised visitation.

Visitation Refusal

Parents, Attachment, and Kids

Father and Son having fun

By Dan Blair, a marriage counselor and family counselor.

To say that a parent’s attachment to his or her kids is strong may be a negative statement. Attachment is described as secure and insecure, so it is possible to have a strong attachment that is insecure.

Insecure attachment descriptors reflect parental styles mentioned in the post What is Attachment? These parental styles are associated with the types of attachment: secure attachment with parental flexibility and stability, avoidant attachment with dismissive parenting, ambivalent attachment with preoccupied parents, and disorganized attachment with overwhelmed parents. Parental capacity is important to consider. Children build their nervous system and learn how to balance emotions, thoughts, and behavior through attachment. Parental capacity to attach to children can also change over time.

Avoidant attachment is reinforced from parental messages that emotions are not important in a child’s self-identity and in making decisions. Thus, the child (and as an adult) may feel like he or she does not really matter. An avoidant person may even believe that emotions steer one into danger or disaster and are not to be trusted. So emotions are left out of daily interactions. It may be hard to comfort or connect with an avoidant person. A second type of avoidant attachment seeks to please a significant other and downgrade one’s own needs because one can only accept emotions if they are not opposed by the significant other. This is a co-dependent relationship.

Ambivalent attachment patterns are derived from close connections that are not stable. The parent could be hot or cold. When cold, the parent may be preoccupied; it does not mean that the parent’s love wavers. So fear may develop associated with closeness and connection, because closeness and connection could be lost. The child or adult in this case may crave intimacy but not want to ask for it. If intimacy does happen, this person may eventually find it stifling. The child or adult may then experience anger and would distance from the significant other, but then fear would overtake from being feeling alone. The pattern then becomes hot pursuit, but then cold distancing.

Disorganized or dysregulated attachment patterns stem from parents who are ruled by the “fight or flight” autonomic nervous system. Parents tend to be aggressive or controlling, stemming from fear. On the other hand, parents could be overwhelmed or a victim, again stemming from fear.

Secure attachments are stable patterns but do not have to be perfect. They stem from a parent’s capacity at a particular place and time to recognize and value the emotions of a child, or to connect with what the child is doing. When the child comes to the parent, the parent in effect says to the child that the child is okay even when the child or parent is having negative emotions. The child is allowed to be separate from the parent, with the child’s own set of valid emotions and self-confidence.

What is Attachment?

Happy Family

By Dan Blair, a marriage counselor and family counselor.

Attachment is a kind of bond that endures over time. It is primarily developed the first to third year of life, but that is not the only chance to develop attachment. Attachment figures are those who meet needs of the child especially in times of distress. Attachment shapes a child’s nervous system.

Sensitivity and responsiveness in interactions is key, not merely time together.

Separation from an attachment figure may cause distress, but secure attachment encourages temporary separation and development. Insecure attachment is still attachment, and the child will still seek or monitor the attached figure. Attachment exists even in maltreatment. A child who avoids a parent has not lost interest, but may be angry, anxious, sad, and even feel guilty. If the needs represented by these emotions are met, the child will gradually decrease avoidance. Three subtypes of insecure attachment include avoidant, ambivalent, and a disorganized or controlling descriptor. Parental behavior associated with the types of attachment follow: secure attachment with parental flexibility and stability, avoidant attachment with dismissive parenting, ambivalent attachment with preoccupied parents, and disorganized attachment with overwhelmed parents. Parental capacity is important to consider.

Appearances can be misleading. The parent that looks like the better parent in counseling, mediation, and court is not necessarily the better parent. Where there is high conflict, usually both parents are contributing to the conflict. Another way appearances can be misleading is the way a child acts out distress upon return to a parent. The child is often expressing how upset he or she was to be apart, and not that he or she had a negative experience while apart.

Since primary attachment is crucial to self-regulation, experts recommend primary custody with one parent for the first three years with frequent visits by the non-custodial parent, though not overnight. Between eighteen months and three years, whole day visits and overnights can be gradually introduced, carefully monitoring reactions. The child’s ability to comprehend that they will return to the custodial parent is important. This lays a foundation for future secure attachments with both parents. Items brought from the primary home may help. Longer parenting time can be gradually arranged and completed by the time the child is between six and eight.

What disrupts attachment? Parental conflict. It is recommended that protracted court cases involving high conflict and children be buffered by an ongoing support system, counselor, or advocate. Minimizing exposure to parental conflict is paramount, and providing a transitional space and place can be helpful to the child. Perhaps dropping the child off with a “neutral” third party from whom the other parent can then meet for pick-up, or at least a public place. For more information, see How One Parent Undermines Another Parent and Reunification Therapy with Estranged and Alienated Parents.

Emery (2011) has recently reviewed his longitudinal finding that, twelve years after random assignment to mediation or litigation, non-residential parents who had mediated their parenting dispute saw their children far more often than parents who settled via an adversarial process, and additionally had improved their parenting. Co-parents who mediated reported significantly less conflict (Main, Mary; Hesse, Erik; Hesse, Seigfried. “Attachment Theory and Research: Overview with Suggested Applications to Child Custody.” Family Court Review (2011): Volume 49, Issue 3, pages 426–463).

Working with Counselors and Court

By Dan Blair, a marriage counselor and family counselor.

Working with the Court in managing chaotic situations involving children and counseling is challenging and requires an additional set of skills. This article should help to evaluate court-involved counseling. It is important to know how counseling will affect the legal process and how the legal process will affect counseling.

Families are often referred to counseling or mediation because (1.) a child is distressed, or (2.) a parent is hoping for support in a court case, or (3.) counseling or mediation is court-ordered. Each of these scenarios differs in the nature of the information that is presented to the counselor or mediator, and in the expectations of the counselor or mediator. Each participant has an agenda that is influenced by the legal process. The clinician should be focused on the psychological health of the client, the mediator should be focused on communication and negotiation, and clinicians and mediators should respect the role of attorneys, forensic evaluators, parenting coordinators, and the Court. Clinicians and mediators should not mix roles without a waiver. If there is a court order, the role should be clearly defined.

Clinicians and mediators should be knowledgeable in child development, and obtain each parent’s perspective and maintain objectivity. The clinician should be careful with attitudes and beliefs of the children that reflect one of the parents. These attitudes and beliefs may be hiding true feelings and may be causing distress. Clinicians and mediators should also know characteristics of divorcing parents and children, family systems, best practice for high conflict, and understand relevant research and standards of practice. Clinicians and mediators should also have ongoing training, especially in domestic violence, parental alienation and estrangement, and special needs of the family and children. Clinicians and mediators should be understanding of expectations and processes of the legal system and work well with collateral contacts.

Reunification Therapy with Estranged and Alienated Parents

Holding-Hands

By Dan Blair, a marriage counselor and family counselor.

Aside from abuse, children generally benefit from a relationship with both mom and dad. Even if there are negative aspects of a parent, children benefit from interacting with one who “brought them into this world,” and can learn crucial coping skills and expand personal styles of problem-solving. Children usually benefit from all the resources of both homes. Also, as both parents and child age the opportunity for a more comfortable relationship develops. Research indicates that not only do children benefit from a relationship with both parents, but in retrospect, children wish they had more time with the non-custodial parent and that children can still feel rejected by estranged and alienated parents. In retrospect, adult children report that they wish someone helped them with their relationship with the “other” parent.

Parents especially in divorce can become estranged or alienated. Estranged parents generally involves the deterioration of the parent’s relationship with the child due to parental factors and child behavior. The child and parent both experience the disconnection. For children of alienated parents, the emphasis is more on what the child has been told about their experience with the other parent, which may include exaggerations and negative allegations. Even if the allegations are true about the other parent, it is difficult if not impossible to accurately measure the exact impact on the child. The child may be attracted to power, and the child may either be more aligned with the more powerful parent, or the child may find power in protecting the “victimized” parent. Some signs of alienation can be found in the post How One Parent Undermines the Other Parent and Visitation Refusal.

Reunification therapy is difficult because it requires not only the usual willingness to make personal changes but also the elusive ability to utilize (versus attack) someone else’s point of view. The earlier the intervention the better. The goal is to help kids past anxiety and avoidance to mastery and confidence. Therapeutic goals are based on each situation, but always involve the parent and child seeing the impact of their own behavior on the other, expressing remorse, the ability to refocus on a future relationship, and effective restriction on the other parent’s interference. Interventions include identifying thinking errors, improving communication, resolving attachment issues, and building self-esteem. Therapists should be active, directive and able to confront maladaptive interactions. Success is determined by the parents making agreements that stick.

What Is Parenting Coordination?

Parenting coordination is a future trend and a viable option to custody battles. When parents are not able come to an agreement regarding their children a parent coordinator will mediate the issue. If parents are still not able to come to an agreement a parent coordinator gathers information to make a decision in the child’s best interest.

The couple agrees to abide by that decision per a court order or parent consent agreement. Some decisions may go one parent’s way and other decisions may go the other’s. This dispute resolution process focuses on the children’s needs and is an alternative to repeated returns to court and/or ongoing conflict that may otherwise continue indefinitely.

Parent coordination can be used to develop adherence to a parenting plan and as a quicker analysis and resolution of child-related parental disputes. The aim of parenting coordination is to stem the drain on family financial and emotional resources by resolving any disputes arising between parents. Note that a parenting coordinator does not resolve the matter of custody, but may be used as an interim basis to the address the implementation of a temporary parenting plan.

The author is Dan Blair, LMFT, LCPC, NCPC is a Nationally Certified Parenting Coordinator and is trained to draft arbitration decisions with precision.

How One Parent Undermines the Other Parent

Upset child from arguing parents

By Dan Blair, a marriage counselor and family counselor.

Much of the time one parent does not realize what they are doing. The effect on the kids is unnoticed. It is usually experienced by the child as stress, tension, anxiety, guilt and depression. Kids may act out or hide it. Parents usually justify it.

What is “it?” On the moderate side it is undermining the other parent and it can lead to alienation. While some parents undermine themselves, one parent undermines the other when intentionally or non-intentionally one parent sends a message that a positive relationship with the other parent is not that important.

How does this happen? It may happen not so much by what a parent says but how he or she feels when he or she says it. If a parent is concerned about his or her child’s welfare when questioning the child about the other parent, the child may perceive your concern as if the child is in a bad situation. Subsequent comments may suggest to the child that something is bad about the other parent. Perhaps the comments are an exaggeration of the other parent’s flaws. A parent’s natural wish to protect a child may lead to proposing ways the child can deal with this “awful” situation, and maybe even question the appropriateness of time spent with the parent.

The next step in undermining the parental relationship would be to give power to the child in deciding whether or not a parental relationship is appropriate. While most parents would not hesitate to insist their child do something that they must do, building a workable relationship with the other parent may be seen as optional. For a child, though, to choose between having a relationship with a parent and not having a relationship is distressing. Even though kids may complain about their parents and protest against seeing a parent, they generally deep down want a good relationship with both parents. When one parent sides with the protest, however, the child may see this is a way to connect with the “better” parent, and the other parent may lose out.

The more the child avoids the “problematic” parent the easier it gets to avoid the “problematic” parent. Plus, the child gets approval and attention from the “better” parent. A powerful reinforced cycle develops.

The child may react by idealizing one parent and devaluing the other. Or the child’s complaints are listed and some of them are trivial or untrue. The complaints sound like they don’t reflect the child’s true feelings, or there is little ambivalence. Children may deny hope for reconciliation.

Children who are burdened by an undermining parent learn that it is not possible to have a good relationship with both parents. The other parent may give the child space to come around, but this may inadvertently reinforce negative perceptions. Or, the other parent may “push” the relationship, again reinforcing negative perceptions. Also, the parent may respond to undermining by undermining the other parent, and then underrate the effect on the kids. Both parents end up with little insight into one’s own contribution to the problem.

The effect on the kids can include changes in how the child views the world, lowered self-esteem, loss of self-confidence, future conflict, issues with attention, depression, and/or anxiety, future addiction and other effects revealed by research. Unfortunately, kids identify with negative aspects of both parents. Often though, the better the relationship with one parent the better the relationship with the other parent. In retrospect, adult children report that they wish someone helped them with their relationship with the “other” parent.

Visitation Refusal

How to Tell Kids About Divorce

Child moving

By Dan Blair, a marriage counselor and family counselor.

Telling the kids is often described as the toughest part of a divorce. The kid’s dream of a “normal” life with mom and dad loving each other dies hard. There is much lost even in a “good divorce” so make sure divorce is unavoidable. Research says that ongoing conflict or an unloving home can be worse than a divorce, so it is important to understand the kids’ point of view.  For example, consider these lyrics by Tom Delonge:

Their anger hurts my ears
Been running strong for seven years
Rather than fix the problems
They never solve them
It makes no sense at all
I see them everyday
We get along, so why can’t they?
If this is what he wants
And this is what she wants
Then why is there so much pain?

Continue reading How to Tell Kids About Divorce

Ex Communication

Angry wife showing bills

Copyright © 2020 Dan Blair

To resolve issues with an “ex” in an unavoidable divorce, present and future co-parents may have to be at the point where they are tired of having issues and spending money for going to court.  To resolve issues co-parents have to let go of total control, which can be scary.  One also has to set aside the anger, hurt, and betrayal that fuels ongoing conflict.  The emotion is understandable, but may not resolve the conflict.

Given the emotional intensity of interacting with one’s “ex,” here’s a way to remember keys to success, if success is within your control.  Remember the goal is not to determine who is “right,” which is debatable, but to stop the issue from going back and forth indefinitely.  There are circumstances where this is necessary, and expensive.  On the other hand, even court orders do not stop the cycle.

Feeling.
Focus on the other’s feeling about the topic, one topic at a time.  Dealing on the feeling level may not be as satisfying as proving the “facts,” but surprisingly, “facts” can also be debatable.  Allowing the feeling of the other takes away the frustration of having to prove a point and creating more defensiveness.  Feelings are the basis of one’s position and often stay they same whether or not one is right or wrong.

Future.
The future is negotiable; the past is not.  The past may be important to understand, but that will not change the past.

Flexibility
The chance of resolving an issue is dependent on flexibility.  This is not to say that one should be flexible, but that to resolve an issue some area of flexibility must be discovered.

Fouls.
How do you derail progress?  Three examples include name-calling, criticism, and topic-jumping that creates defensiveness that add “fuel to the fire.”

These approaches to problem-solving are inadequate if one side believes that non-agreement or “winning” is a more desired scenario.  But even in “winning” there is much to be lost.