*This page was written by Dr. Susan Zeidel, clinical psychologist and mediator, and author of “Divorce and Stay Friends” (2004, Haifa: Haskamot Publishing). Dr. Susan Zeidel founded the Mediation Group Association for Family Therapy, served as its past president, and was the chairperson of the Israel Center for Mediation, as well as a member of the Mediation Committee of the Ministry of Justice and the Courts Administration.
Mediation (gishur) is a systematic process for conflict resolution. Parties to the conflict use intermediaries—professionals who specialize in mediation—to reach an agreement. When it is important to continue a normal relationship between the disputing parties, mediation is a particularly suitable method. It is also well-suited for parties who wish to end a relationship in a dignified manner. For these reasons, mediation is particularly suitable for all family disputes and divorce proceedings. During mediation, spouses meet under favorable conditions and within a relaxed atmosphere. Mediation relieves tension and helps each party to define clearly his or her position on various issues. The mediator facilitates rational and practical communication in order to make decisions about a family’s future (e.g. property division, childcare, family economics, et cetera). The mediator does not take sides in favor of one party or the other, and does not make decisions for the family. The couple’s decision forms the basis of the divorce agreement, and will be considered valid after approval by a rabbinic or family court.
Why is it Better to Pursue Mediation?
In the last decade, the number of divorces in Israel have increased significantly, proportional to the substantial increase in willingness to divorce and the overall increase in population. Many divorcées have children of different ages, and the number of “children of divorce” is growing. Divorce takes place primarily in two ways: on the legal level and on the emotional-psychological level. Divorce occurs in a continuous process that affects a family over time on both of these levels.
On the legal level, if the parties reach their divorce agreement, the legal process may be short. Agreement will be given the effect of law either in a rabbinical or family court. In the case of the lack of agreement and a conflict between spouses, litigation may be a much lengthier process.
In comparison to the legal process, emotional-psychological effects are even more prolonged. They begin as soon as divorce is even an option—either in one’s own mind or within a conversation the couple has—and continue long after one has already received a get.
Collective experience worldwide has proven that traditional legal approaches to divorce pit spouses against one another and encourage rivalry, which is unhelpful for families. In addition, it has become clear from experience that separating couples actually can make intelligent and equally beneficial decisions for the future of their children and themselves, if only encouraged to do so. Mediation is an appropriate framework for resolving marital conflicts and encouraging collaboration. Couples—especially those with children—can experience special benefits when their divorce is discussed within mediation.
Because of the Past, the Present, and the Future
Although a couple has decided to end their marriage, they were previously partners in life and that intimate relationship is special. They must have shared struggles and good experiences together, and together born the burdens of many problems. Out of respect for this partnership—especially the positive aspects of its past—it is best to end the relationship with mutual respect.
As for the present, the process of separation can be less offensive and less painful if spouses are prevented from entering a legal battle. If a couple has children, the use of mediation can avoid the hardships of going to war within one’s home, the dilemma of split loyalty, and the tension involved in managing ongoing legal proceedings.
Some couples get divorced due to a lack of passion or romantic love, but they want to hold onto the deep friendship that still abides between them. For them, mediation is the best way to divorce and remain friends.
The need to cooperate in childcare will continue for years into the future after a divorce. It is much more difficult to cooperate with a former “enemy” than with a past partner who treated you with respect during the separation process.
An additional reason to choose mediation is not to undermine the chances—however slim—of getting back together in the future, or even of regretting the divorce at hand. Some couples change their minds during mediation or during the waiting period to receive the get, and take back their decision. The behavior of spouses during the period following the announcement of divorce may affect the possibility of renewing their relationship. Sometimes, because of the feelings hurt through legal actions, the way back to each other becomes blocked.
Because of the Benefits to Her, to Him, and to the Children
It is very important that both members of the couple abide by the conditions of the agreement as it is expected to hold for many years. Experience has shown that when the couple themselves determines the conditions, the rate of honoring these conditions is higher; whereas when the conditions are imposed on them by a judge, the rate is lower. When the couple feel satisfied with the results of the process, the atmosphere in the home is more pleasant and more conducive to respecting the agreement.
Cooperation between parents saves children from the “need” to side with one parents at the expense of the other. The mediation process encourages the continuation of the relationship between both parents and their children; contact is essential for the proper development for children of all ages.
The mediation process is usually quick and efficient and saves the costs of legal representation and court fees. The parties control the pace of the process. They can move as quickly as they feel comfortable. In addition, privacy is maintained during mediation, which does not happen in court.
From a more personal perspective, mediation may also reinforce a couple’s self-image. They view themselves as successful in dealing with one another with dignity while resolving common problems. Moreover, the process of mediation gives the parties to negotiate mutual help from one another to solve other problems in the future.
There is no doubt that ending a relationship is a painful process and is difficult upon both children and their parents. Using mediation does not sweeten the bitterness of divorce and turn it into an enjoyable experience. Nevertheless, cooperation between the couple as they separate—both at the planning stage and after the separation—makes it easier for their children to adjust to their new life.
Goals of Mediation in Divorce
The main purpose of the mediation process is to allow a couple to reach an agreement that will help them to separate and divorce legally. Most couples who come to a mediator are interested in reaching a divorce agreement, including parenting arrangements and financial agreements. A secondary objective is to reach an agreement that will serve all members of the family the best, depending on the family’s particular circumstances. It is not enough to reach an agreement. The quality of the separation agreement is no less important. The quality of the agreement is related not only to reasonable and fair results for the couple, but also—and especially—to good decisions on the welfare of their children.
Another goal, for the mediator, is to improve the ability of the couple to have a discussion, without enmity, in order to resolve problems and disagreements. This goal is relevant for when the couple has shared children and will continue their cooperative relationship as parents to their children, even after the divorce. The hope is that the couple will use these tools that they acquired in the future should there be new problems or disagreements regarding the children.
Choosing a Mediator
Today, thousands of mediators offer their services in a variety of areas, but only about 5% of them mediate in family matters and divorces. You can find lists of mediators online on the “Yellow Pages” (dafei zahav) for the Family Court and the Israeli Association for the Family. As with many things, there is no regulation over mediation as a practice, and anyone can advertise him or herself as a mediator in divorce matters. It is therefore advisable to find out about a mediator’s professional background, where she or he received training in mediation, and what her or his experience with couples in the process of separation. If a mediator presents him or herself as “certified,” investigate the certifying body. Any person can attend a course in mediation, including family mediation; a certificate of completion of a course does not indicate professional ability. In addition, the company itself, including the Mediation Group Association for Family Therapy or Mediation Association of Israel, does not indicate the professional ability of a particular mediator.
The Structure of Divorce Mediation
The process begins by obtaining information about the family and the stages of the couple being separated. As in any arbitration, after the mediator explains what the mediation process is, the parties need to agree upon ground rules and sign a participation agreement. Next, the parties determine the areas up for discussion. In most cases, a couple will want to discuss all aspects of a divorce, even if they turned to mediation to resolve a specific dispute. Usually, mediation starts on the topic of parenting, then child support, and finishes on property division.
For each and every subject, work is done by collecting relevant information outside of mediation sessions, bringing that information to sessions, testing different options for every subject, and conducting negotiations to arrive at decisions. Collecting facts and figures is an essential task so that decisions are made only after complete and accurate information has been obtained. The mediator will guide the couple on how to obtain information necessary for each subject at hand. Relevant information may be received from experts, such as lawyers, accountants, tax advisors, brokers, appraisers, or psychologists.
The number of sessions with a mediator varies from one couple to the next depending on the complexity of issues and the willingness of those involved to reach an agreement. In most cases, the process takes three to six sessions.
At the end of the process, the mediator writes a summary of the decisions that the couple reached on every issue. This is a general agreement that forms the basis for the legal divorce agreement. The agreement itself is prepared by a lawyer. You can approve the agreement in a family court or in a rabbinical court, and then arrange for a get in a rabbinical court.
The Structure of Mediation Sessions
Most family mediation sessions will be shared by both spouses. However, there are situations that require separate meetings with each party. The mediator will outline a policy for separate sessions from the beginning, when the ground rules are set. One of the reasons for holding separate sessions is to check as to whether there is domestic violence, which would affect ongoing work with the couple. Another would be to enable the couple to talk about problems that they are afraid or refuse to discuss in the presence of the other.
Under exceptional circumstances, the entire mediation will be conducted through separate sessions with the mediator serving as an intermediary between the parties using a “dialogue diplomacy.” In such cases, an acceptable divorce agreement may be reached, but the relationship between the couple will remain tense and problematic.
Children Attending the Mediation
Generally, children do not participate in mediation, but their participation is often necessary when the conflict focuses around them. For mediators who have a professional background in family or childcare, children are more likely to be involved in the mediation talks. Therefore, couples whose conflict revolves around their children should choice a mediator with a background in therapy, and not just the law. The mediator may meet with each child individually—or all of the children together—without the presence of the parents. After talking with the children, the parents will receive information from the mediator regarding the feelings, special anxieties, and desires of the children provided that the children agreed that the mediator can report to their parents. This information may help parents make the best decisions about future parenting arrangements.
A mediator may invite the children for a joint meeting with the parents when discussing arrangements relating to them directly. Sometimes the mediator invites the children towards the end of the mediation to react to the plans their parents have agreed upon for them. The children’s response can uncover considerations that the parents had not contemplated.
Children’s participation in the mediation process is also important for the children themselves. They have an opportunity to better understand what is happening within their family, which can reduce confusion and anxiety about the future. The experience demonstrates to the children that their parents are trying to settle their dispute in a peaceful manner and that they are not “at war.” Children participating in mediation sessions realize that their parents are taking their needs and desires into account, not forgetting them or pushing them aside into the whirlpool of the crisis.
In any case, the responsibility for decision making remains in the parents’ hands. Children can make their concerns and desires known, but the main decisions will rest with their parents.
Experts and Stakeholder’s Participation in Mediation
For the most part, when lawyers, legal consultants, or representatives of a divorce case are involved, they remain in the background and are not present in the actual mediation sessions. In family matters, lawyers allow their clients to represent themselves in the negotiations that take place during mediation. However, the presence and active participation of these figures in a mediation session is definitely possible. Their participation is more common when mediation is conducted after a court-mandated referral to mediation. In any case, lawyers are a source of information and advice outside of the mediation sessions, and are actively involved especially before one makes a final decision, as well as in the preparation of the divorce agreement. If other specialists are needed (e.g. accountant, psychologist, et cetera), they will take their opinions in writing to the parties and/or the mediator, or they will participate in the activities of a mediation session. Only exceptional cases involve experts in mediation sessions. Experts are invited to advise the couple in front of the mediator, or to provide professional and objective information on the scope of family property and its value, or the special needs of children.
The mediator can invite other people, if in his or her opinion they have considerable influence on one side, either positive or negative. Others can include extended family members, new life partners, or persons emotionally involved in the divorce process. A mediator will want to enlist their cooperation, or alternately, to neutralize any negative impact. However in any case, a conversation with an “other” will only be conducted between the third party and the side that he or she supports. In practices, during most cases only the mediator and the spouses will participate in sessions.