The Littlest Losers

Of course, the greatest victims of the fighting are the children. As far back as the 1970s, courts began setting up mediation pilot programs in response to complaints from mental health professionals that traditional divorce litigation was disastrous for children. “Most of the early practitioners of mediation were non-lawyers,” Adam Berner says. “But after a while, lawyers began complaining that mediated agreements weren’t consistent with the law of the land and weren’t dealing with financial details. At that point, formal programs were developed to create more responsible mediation.”

Berner underwent training at Cardozo Law School. Hadassah Fidler attended the London School of Mediation, and says courses are offered in Eretz Yisrael that are endorsed and regulated by the government. “Many mediators are lawyers or psychologists,” she notes. Basic and more advanced training programs are available for mediators who want to further their skills.

When Rabbi Rosenfeld began practicing law in the early 1980s in Massachusetts, the state association for mediators consisted of about ten members. Since then, mediation has become increasingly popular. “Mediation just makes sense,” he says. “The Gemara talks about circumstances in which a beis din should look for din — a judgment — and those in which it should encourage a psharah — a compromise — worked out between the parties.”

When there’s a lot of litigation, the only people who can be said to benefit are the lawyers. “It’s more profitable for them to fight things out in court,” says Rabbi Rosenfeld, who stopped practicing divorce law because, as he puts it, “I didn’t like being a hired gun. A mediator might be able to work something out in mere minutes, while a lawyer could opt to make a motion in court that costs the client thousands of dollars.”

Honest lawyers aren’t looking to get rich off other people’s misery, counters Manhattan-based lawyer Shprintzy Gross. “Advocating for a client isn’t the same thing as being litigious,” she protests.

Ron, who ultimately spent time in court, concurs, “The basis for acrimony comes from the people, not the courts. Courts aren’t interested in extending things, and the best lawyers want a reputation for moving things through court quickly and efficiently.”

New York divorce lawyer Martin Friedlander adds practically: “The lawyer’s reputation for being fair and honest is on the line. And when things drag on too long when it’s not warranted, the client may run out of money and not be able to afford the work.”

How Mediation Works

Mediation is a low-impact means of settling the dissolution of a household. “You wouldn’t run to surgery if you have a backache,” Adam Berner says. “First you’d see if there was a less painful, less invasive way to resolve the issue.”

There are no winners or losers; mediation is about reaching an agreement people can live with. Rabbi Rosenfeld cites an example from Getting to Yes, a classic mediation book: “Imagine a person went to the library to get some work done. Another person sits near him, but he feels hot, so he opens the window. The breeze blows the first person’s papers all around, so he gets up and closes the window. The second person opens it again. Then the first one closes it. After a few rounds, the librarian comes over and asks, ‘What is the issue here?’

“The first person needs to work without his papers blowing away, the second person needs the room to be less stuffy. The librarian acts as the mediator. She suggests opening a window on the other side of the room, so everyone gets what he needs.”

Rabbi Rosenfeld produces an example from his practice. A wife said she didn’t want her ex to have the children three days a week, and he asked if she was reluctant because she didn’t view him as a good parent. “No,” the woman told him. “I’m worried that he’s going to take the kids to eat at places that don’t have proper hashgachah.”

Rabbi Rosenfeld asked, “Is there a rabbi both of you can speak to?” When the couple agreed on Rabbi X., Rosenfeld requested that they have him write up a list of acceptable restaurants. “The fight wasn’t about visitation, it was really about kashrus,” Rabbi Rosenfeld says.

The mediation process allows for more participation from the divorcing couple, more flexibility, and less acrimony. A good mediator will introduce reality testing when necessary; for example, a woman who tells her husband, “You take the house, I’ll take the kids” is not being realistic. “I’ll ask her, ‘Where and how will you live?’ ” Mrs. Fidler says. “Some women are completely clueless about the state of the family finances. In such cases I advise them to bring a more knowledgeable relative along to the sessions on finances.”

Shiffie Merzel had never heard of mediation until her father suggested she and her ex-husband try it. “I knew I’d need some sort of relationship with my ex because of our children, even after they’re married,” she says. “The mediation made us sit down and discuss things, instead of telling a lawyer what we wanted and letting our lawyers fight it out. We discussed our children’s lives up to age 25.”

With the mediator’s help, they hammered out details like paying for yeshivos, camps, and weddings. The agreement included provisions for one spouse moving away and increases in yeshivah tuition. As time goes by, they occasionally call their mediator to work out issues regarding one of their children who has special needs.

Ron spent five months in mediation with his ex-wife, spending close to two hours in each session. Each session was structured around a particular topic, and he sometimes had to bring his “homework” — financial documents to discuss, or decisions he’d thought over. “We had a lot of typical topics — where we’d live, where the kids would go for school, visitation,” he says. “But we had some atypical topics as well, such as my wife’s desire to homeschool the kids.”

Mr. Friedlander points out that mediation is especially helpful for frum parents where chinuch issues are concerned, since secular courts don’t understand the fine distinctions between different types of Jewish schools and camps. “While it’s unfortunately rather common to see couples divorcing because one spouse no longer wants to be religious, judges may not understand the religious issues,” he says.

One of his client’s children attended a chassidic yeshivah in Boro Park, as per their divorce agreement. But when the wife became upset that the husband wasn’t giving her enough money, she retaliated by transferring her children to Lubavitch yeshivos, and back to court they went. “The husband was lucky he got a judge from Brooklyn who understood the differences between the groups,” Mr. Friedlander says. “To another judge, both schools would qualify as chassidic yeshivos.”

In such cases, mediators are a useful third party, able to discuss the advantages and disadvantages of different yeshivos or negotiate issues like the length of a child’s peyos. Mr. Friedlander advises building in provisions about future eventualities like changes of location. In the frum world, it’s not unusual for spouses to remarry someone living in Europe or Eretz Yisrael, but secular courts typically don’t take kindly to that sort of international relocation.

Communication and Clarity

What mediation is not, cautions Mrs. Fidler, is therapy. “Mediation is focused on practical issues. It’s not about transforming the people who are divorcing,” she says. “But it does often help people understand the other person’s position better.” When discussions reveal ambivalence about a couple’s decision to divorce, she refers them to a couples therapist.

About 30 percent of the time, Mr. Berner estimates from his experience, only one party wants a divorce. “We talk about how to go forward, and if they should see a therapist.”

Similarly, Rabbi Rosenfeld tells of a couple who seemed unsure. When the wife was asked what she would change about her husband to make it work, she answered, “He has to change the field he’s involved with.”

The husband replied, “Actually, I always wanted to go to law school.”

“That’s fine! I would support you in that!” the wife said. Case closed!

In another case, Rosenfeld sensed the wife hinting that her marriage could be saved. After it came up three times, he prodded the wife to express her view. “The husband told her, ‘No way,’ ” Rosenfeld says. “But at least she stopped holding out false hope, and they were able to move on.”

Simply having a neutral third party in the room allows for discussion of thorny issues with more freedom and confidence. It helps balance the issues and keeps them grounded in reality. When distraught people ask for unrealistic things — like a father with a demanding job asking for full custody — the mediator brings him back to earth by asking, “How do you expect to take care of them?” Or he might ask a woman making too many financial concessions: “How do you expect to survive on that amount of money?” When a couple locks horns over finances or custody, a good mediator will ask both parties, “What do you think is fair?”

The points of contention that plagued the marriage naturally carry over into mediation sessions. Rabbi Rosenfeld finds the most common areas of dispute involve child support and yeshivos, and debts one spouse incurred during the marriage. It’s also common for parties to dispute expenses like psychological or alternative medical treatment for children, if the paying spouse doesn’t see its merit.

Because the former partners are forced to hash out their issues, mediation can have unanticipated benefits. “If the mediation goes well, the couple will walk away with better communication skills,” Rabbi Rosenfeld says. “In the same way a depressed person who goes to therapy acquires tools for combating depression in the future, a couple who goes to mediation acquires the tools for negotiating issues that may arise further down the line.”

Tough Cases

Rabbi Rosenfeld once asked a therapist why more people don’t use mediation. She answered, “You underestimate the power of wanting revenge. Some parties seek payback rather than solutions.”

Angry, hurt, vengeful feelings often lead people to behave badly, trying to grab everything they can. Mrs. Fidler won’t work with anyone unwilling to be reasonably honest and fair: “Mediation doesn’t work if the other party doesn’t act in good faith — for example, he lies or hides his assets,” she says.

Some mediators will drop a case if one party is too hard to work with. “If one side plays tough, the mediation won’t work,” Rabbi Twerski says. And while in theory mediators maintain complete neutrality between the parties, he has seen mediators swayed to one side. (“They usually favor the party who approached them first,” he observes.)

Of course, both parties need to be of sound mind for mediation to work. Mr. Berner notes that it’s not a viable option in cases of mental illness, addictions, or in which one side lacks or has lost the cognitive faculties necessary to negotiate and plan for the future. It’s also not appropriate in cases of domestic abuse.

“With abuse, there’s too much fear,” Mrs. Fidler says. That prompts the question: What happens if a wife (or husband) isn’t abused, but is passive or simply too intimidated by the spouse to speak up for her needs in front of the mediator? In such cases, Mrs. Fidler will schedule private sessions with each client to make sure each has a chance to speak freely. A woman might say, “Just take what you want” when her husband is present, worried that he might upend the divorce or otherwise threaten her. But she can’t realistically give over everything to her ex and continue a normal life, and she probably has opinions about what to do with the children, so the mediator needs to work with her privately to construct a fair scenario.

Buyer Beware

Lawyer Shprintzy Gross, who has participated in many mediation sessions with her clients, isn’t enamored of mediation as a total solution for divorcing couples. “At my office, we recommend mediation when we think it will help clients have a better idea of what’s going on, or can handle the smaller stuff on their own,” she says. “But if there’s no meeting of the minds, or desire to settle on any level, it doesn’t pay.”

Because mediators are supposed to be neutral, they cannot advocate for one side over the other. “Mediators do not always provide both parties with sufficient detail regarding their rights and benefits according to the law,” Mrs. Gross says. (Mrs. Fidler suggests getting legal advice before starting mediation to know what you’re entitled to in a divorce; similarly, Mr. Friedlander cautions that some mediators are good with people but may not have a profound knowledge of the law or halachah.)

In Mrs. Gross’s experience — she works mostly with high-end clients — mediation is often insufficient when complicated assets are at stake. “What does a mediator do if there’s not full disclosure of someone’s worth?” she says. “As lawyers we’ll evaluate someone’s worth — for example, we’ll assess the worth of a medical practice. Mediators are better for negotiating the smaller stuff lawyers don’t want to get involved with, like who gets the antique lamp or artwork in the apartment.”

One of her bigger beefs with mediation is that the agreements aren’t legally binding until signed and properly acknowledged. One client of Mr. Friedlander spent a year in mediation, resulting in a 56-page document. “The client sent us the agreement to review,” he says, “but the husband didn’t like one point and walked away from the whole thing! We had to start again from square one.”

Ron was similarly disappointed when he discovered his mediation agreement wasn’t legally binding. Just after he and his ex-wife finished the mediation process, she met another man and disappeared for ten days. “It’s like the whole thing was a joke for her,” he says. He was forced to go back to court and ended up spending $20,000 more in addition to the $5,000 he’d spent on mediation.

Nonetheless, he concedes that mediation helped because he went to court with a signed agreement in hand. When his ex-wife falsely accused him of certain things, he had a signed paper that showed no indication of what she claimed. “The judge told her, ‘Where is all this coming from if you signed this document?’ he says. “The mediation wasn’t enough to enforce anything, but the judge was able to use it as a starting point.” His takeaway: “If you believe your spouse is stable and will make decisions in the best interests of the kids, do mediation! It’s cheaper and less painful. But if the other party won’t respect it, it’s a waste of time and money.”

Recently a new species, the collaborative lawyer, has emerged to address the gap between nonbinding mediation and binding arbitration. Collaborative lawyers have training in mediation, and commit to working out divorce agreements out of court, using mediation techniques — the best of both worlds. Mr. Friedlander notes that this system includes a built-in protection against prolonging things: in collaborative law, the rule is that if the case goes to court, a different lawyer has to take over.

People considering mediation should be aware that it is not a regulated field. “You don’t need any license to become a mediator, there are no universal standards,” says Rabbi Twerski. “Some well-meaning people jump in but have no idea what they’re doing. There are even people in the frum community doing mediation for free, but the old adage, ‘You get what you pay for,’ sometimes applies in these cases. In addition, the people who are going for free don’t feel as invested in showing up or working hard on compromising.”

Eye on the Prize

In any divorce, the children bear the brunt of the rupture, and mediation seeks to buffer the blow by keeping the process as peaceful as possible. Rabbi Rosenfeld knows a mediator who tells his clients: “Picture the night of your child’s high school graduation. Your child tells you he wants to say something. Now there are two scenarios. Either he can say, ‘Even though you divorced, you did your best to spare me the pain of your fighting and never put me in the middle.’ Or he can say, ‘You and my other parent really ruined my life, you know. You acted like children, used us as pawns, and made us all miserable.’ ”

“Children want to love both parents,” Rabbi Rosenfeld says. “You always have to keep the long-term impact of your actions in mind. You were a responsible parent when it came to not letting your child cross the street alone; now you have to be responsible about not fighting unnecessarily with your ex.”

Mediation is tough work. “It can be depressing,” Adam Berner admits. “Each client is mired in his own misery, and you have to summon the same empathy for each person. It can take a lot of energy. But it’s good to see couples trying to do what’s best for their children. I feel successful when I can facilitate more understanding, and produce more informed decisions.”

Rabbi Rosenfeld adds that people need closure, and want to believe they made good choices. “In the end,” he says, “most people want their children to have a good life, and want the reputation of having done their best to assure it. They want to walk away feeling they did the right thing, and that they acted with dignity during a difficult time.”

(Originally featured in Family First, Issue 497)