Co-Creative Divorce using Mediation or Collaborative Law

Divorce is a time of transition.   It’s a time of undoing and a time of creation.

Whatever the reason, the couple in divorce has decided to end their marriage contract.   The divorce process is the bridge from a place of being husband and wife to a new place that has not yet been defined.   The blank wall in my mediation room is the canvas on which the old life is unraveled and a new life begins to take shape.

Before we immerse ourselves in the task of unraveling the marriage, it is imperative to look forward and imagine the future that is being created.   I find it helpful to focus on the destination.  Not just the destination of divorce, but beyond that.

All of my clients will say that that they imagine a future in which their children have loving relationships with both parents.   In creating this vision for the future, I ask the question: “If your children were to come into this room 10 years from now and I were to interview them and ask them what they remembered most about the time their parents divorced, what is it that you would hope they would say?”

The children now occupy the central place on the empty canvas, (that represents the future of this family) and become the anchor for all subsequent discussion in the room.

If what they hope for their children’s future is true, then how do they get there?   How do they now deal with the present reality of dividing assets and determining financial support for children?  What kind of parenting plan will they create that will achieve this shared vision?   How will they conduct themselves both inside the meeting room and most importantly in the presence of their children?

With the children as the focal point, the parents then create the rest of the picture that they will all inhabit.   Research shows that it is not the divorce itself that harms children, but rather how the parents conduct themselves during the divorce.   The parents hold the power to create their children’s reality.

The only concept of family that the children may have had is one where both parents live together in one home.   With the decision to end their marriage, the concept of family that once existed also ends.   The parents now hold the brushes and the paints in their hands and together they create and define a new image of family.   Will this new picture meet the children’s needs to be loved, to belong and feel valued?

It seems ironic that at the time the couple is deciding to separate and divorce that they must now cooperate with each other so they can both reach their destination.   With this mindset, they co-create the new image of their children’s future and their own future

My role as the mediation is to remind the clients what is at stake if they cannot resolve their conflict.   I assist them in looking at the conflict from a different perspective, taking them to the balcony so they can see things from a new vantage point.  I help them focus on their vision for their future, only delving into the past as necessary to resolve an issue in the present.

Clients choosing mediation or collaborative divorce do so because they desire to end their marriage and shape their future in a manner that is respectful to each other and their children.   They seek to preserve the parenting relationship and their assets rather than walk a path of destruction.

It is useful to consider all of the various paths available before choosing the one that will work best for you.   The three most common paths taken are mediation, collaborative divorce or litigation.

The traditional approach to divorce is the litigation path where each spouse retains their own lawyer and their issues are resolved either by way of the lawyers negotiating a settlement or though court applications or a trial.   All documents filed in court become a matter of public record.   If the issues are resolved in court, the clients have no control over the decision-making and the judge imposes a decision on them.

In collaborative divorce, each spouse retains their own collaborative lawyer and then signs an agreement that states they will not use the courts to resolve their issues.  If at any time either spouse wants to go to court, then the agreement terminates and each spouse must find new lawyers to represent them in court.   All meetings occur face to face with both lawyers and both clients.

With both mediation and collaborative divorce, all meetings are private and confidential and occur in an informal setting. The focus is on cooperative resolution of issues with a view to the future.   If additional expertise is required such as financial experts, child specialists or divorce coaches, they are jointly agreed upon and brought into the process.  The clients determine the timing of their meetings and make their own decisions.

With mediation, the couple agrees on a neutral third party that will facilitate the dialogue that they are unable to have on their own.   Once resolution of all issues is reached, the mediator prepares a report that the clients take to their lawyers to have drafted into a legally binding contract.

A friend of mine created the word “crisitunity” a blending of the words “crisis” and “opportunity”.    Divorce can be a time of crisis and simultaneously a doorway into opportunity.   When one world is destroyed, another is created.   The reality that once existed has been shattered and in that space exists the opportunity to create something different.

What is the picture that you wish to create for yourself?   And for your children?   What does that look like?   How will you get there? What will you teach your children about dealing with crisis? And opportunity?