Response to recent Commentaries in the Star Tribune
by Steve Erickson
I noted in today’s Minneapolis StarTribune newspaper (July 18, 2012) that Michael Ormand, a local divorce attorney, said Judge Peterson was all wrong last week when he observed in an op-ed piece that divorce cases needed to be moved out of the court system and handled in a different manner. This was quite a stretch for a sitting judge. He said that one of the fundamental flaws of the current system is that it is “coercive” and generates conflict because it is adversarial. I thought Judge Peterson’s editorial was thoughtful and courageous in suggesting that divorcing families might be better served through “family resource centers offering a full spectrum of services from counseling and mediation” as well as other strategies that might guide couples to peaceful divorces.
As could be expected, supporters of the status quo go on the counter attack.
Ormand basically made three points in his commentary:
- Vulnerable parties would not be protected if the law did not coerce them into being responsible towards their ex-spouses and children because people do not have selfless regard for the welfare of the other spouse and the children.
- Therefore, courts and the law need be available to coerce them to be fair when they do not want to be fair.
- And, Alternative Dispute Resolution (ADR) processes are also necessary because such procedures (we assume he must mean mediation and other methods short of trial) operate by “anticipating the decisions that would be made by a reasonable court under the law and persuading the parties to agree to such a result without going through trial. The specter of coercion plays an essential role.”
Thank You Michael Ormand!!
I have been trying for some time to synthesize the reasons for my dislike of the adversarial system and you just helped crystallize my reasoning! Your counterpoint to Judge Peterson is illustrative of why we must immediately work towards moving divorce out of the court system.
As a mediator at Erickson Mediation Institute (EMI), it is clear that our model of mediation relies on a completely different (quite the opposite, really) set of assumptions.
First, we at EMI believe that people are competent to make their own decisions about what is fair for their family. The court did not intrude on their family system prior to divorce to make them more responsible. Only after a divorce was commenced and lodged in the court system did certain laws take effect guiding their decision making. They are not incompetent and in need of coercion!
Secondly, while it can be useful to have overall general standards of fairness that the State says everyone should follow when they unhook, we do not need to say that because you have some marriage vows, we must now dictate your settlement in grand contest of who is right and who is wrong, who wins the kids and who loses the kids, and who can get custody so they will get more child support from the non-custodial loosing parent. If two business partners decide to dissolve their business and go their separate ways, they are not forced into the court system. Only when they cannot agree, do they need to rely on the general principles of the Uniform Partnership Act that basically says: Divide the accumulated wealth equally or proportionally between the partners (this is not rocket science, folks). What judge Peterson wanted was an end to the adversarial contest that creates the battle, not an end to responsibility.
Thirdly, Michael Ormand, you got it completely wrong about ADR. As a mediator, I am classified as an ADR provider. I wish the Bar had never invented the term ADR because I am not an “alternative” to anything. I strive to work like the systems in place in Australia and New Zealand, where mediation falls into the category of “Primary Dispute Resolution” or PDR. My job is not to predict what would happen in court so that I coerce the people in front of me to follow state law and be responsible. As a mediator, I lose my effectiveness when I predict what would happen in court. And if you really think about it, if the job of a mediator is to tell the couple the law so they can be coerced into being responsible, then only lawyers could become mediators as they are the only ones who are licensed to interpret the law. And then we would be back to where we started when we created divorce mediation as a better option than the craziness of the court system. No Michael Ormand, we mediators rather move people to be responsible by re-defining the typical divorce problems in a more responsible and family friendly way. When we redefine the problems in new ways, we assume responsibility:
- Instead of “Who is the worse parent so the better parent wins custody” – in mediation, the problem we work on is “What parenting plan can we create so that both of you can continue to be the best parents possible given your separate living arrangements?”
- Instead of “How can I get the non-custodial visiting parent to pay more money because he [or she] is a deadbeat” – in mediation, we say “How will the two of you share the costs of raising the minor children given the fact that you earn different incomes and you may spend different amounts of money on them and their expenses change over time?”
Now I ask you, when you think about it, isn’t it the laws and the legal system that are irresponsible for the battle they have created, not the parents’ irresponsibility as Michael Ormand suggests?
Coercion’s just what splitting couples need by Michael Ormond
Divorce does not belong in the court system.
If every time I had an argument with a brother or daughter or other relative, I had to hire a lawyer to point out how outrageously wrong that brother or daughter or parent was, I would not have a family. I might prove my point, but I think I would spend a lot of money on something that is better handled face-to-face. And the rest of my family would be left wondering why I was such a bully and why we couldn’t just work it out.
Some people say, “But you need guidance about what is fair and the courts and the lawyers know what the law has said is fair.” WRONG! As long-time mediator and attorney Leonard Marlow says: “If the law is so fair, why is it different across each state line?” Indeed, if the law is truly an instrument of justice and fairness, why is it that Texas will say to a wife, “Sorry, the most spousal support you could ever get in this state is $2,500 per month and then only for three years.” Yet, in Minnesota, there is no cap on spousal support and in longer marriages courts may award permanent spousal support.
Let’s talk about kids: Every parent’s main concern is “How will this affect my children?” But, if you and your partner or spouse have children and decide to live apart, you may be told by an attorney that it is to your advantage to get custody. In some cases, this attitude will start a battle that could last years. Here’s why: In most states, the person with “custody” (or with more time) gets more child support from the non-custodial, less-time parent. Of course, this approach basically labels one parent as inadequate and leaves that “losing parent” with less money to spend on the children. Wouldn’t you expect most people to fight to the bitter end to avoid being labeled a “non-custodial, non-residential, non-primary, less time, visitor?” (Or in Texas, you could become a “non-managing possessory conservator enjoying only access or visitation rights” and not full parental rights if you lose the battle).
At Erickson Mediation Institute (EMI), trained mediators will help you move away from the winner-take-all, loser loses, bullying that goes on in the playing field legal system by giving you guidance on what is really worth fighting about. Rather than fighting against each other, an EMI mediator will ask you, “What are the future parenting arrangements you can agree upon so that each of you can continue to be fully involved parents?” Keep the term custody for use with people at the state prison and use the word visitation at the funeral parlors, not in connection with your divorce.
Divorce is painful. Don’t make it worse by thinking it is a legal problem, therefore hiring a gladiator attorney and entering the arena of combat. After all, you are getting divorced to make things better for yourself (and your children), not worse.
Divorce is a family problem. It may create some legal issues (such as how you will get your name off the mortgage if only the other is keeping the house or trying to decide who will claim the children as exemptions on future income tax returns), but in the end, these types of problems are better handled in the mediation room where people attack problems, not each other.
Make things Better, Not Worse!!
This is the first installment in a blog about how Erickson Mediation helps people avoid the pain and destruction of adversarial, bitter divorce.
At EMI, our mediators will help you look at many different options for sharing the costs of raising the children.
Many of our clients use our Children’s Checkbook™ to share the costs of the children on a proportional basis with the higher income parent contributing more to the account each month.
At EMI, you will realize that you can only get a good result for yourself when you also allow for the other to obtain a good, fair result.
Steve and Marilyn were recipients of the New York State Council on Divorce Mediation’s Second Annual Distinguished Mediator Award on May 5th. The award was given in recognition of “their pioneering and sustained work in establishing the field of divorce mediation and their soulful dedication in helping families” over the last 35 years. Marilyn and Steve also delivered the keynote address for the conference. Congratulations Steve and Marilyn!
Bill Eddy spoke at a day-long seminar put on by Erickson Mediation Institute on February 4th entitled, “Working with High Conflict People.” Over 50 therapists, judges, attorneys and mediators listened to and engaged Mr. Eddy as he spoke about his experiences with high conflict people. Mr. Eddy explained the psychology and physiology behind many personality disorders commonly linked to those with a high conflict behavior pattern while giving insights and tips on how practitioners can best work with them. The conference was an enormous success! A few of Mr. Eddy’s practice tips included:
- High Conflict People respond well to the professional providing structure
- Some effective ways to manage a High Conflict Person are to exude Empathy, give them Attention and Respect (E.A.R.) Invite High Conflict People to make a proposal – this moves them quickly from the past to the future
- Put the problem on the shoulders of the High Conflict Person (“You have a dilemma. What are YOU going to do about it?”)
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Erickson Mediation Institute
3600 American Blvd West
Minneapolis, MN 55431