TEMPO

Defusing divorce: Mediators help make the parting less painful

By Mary Elson
 

   JUNE LIMKE remembers feeling grounded--as if her family were in an airplane sitting on a runway.
   "Everyone was ready to take off, but the plane didn't go. My son, who was 7 at the time, began to think it was never going to be final, that his father was going to move back in.
   "He kept asking, 'Are you divorced yet, Mom?'"
   At that point, the 40-year-old Mt. Prospect woman and her husband had been haggling with attorneys in and out of court for a year and a half. They both wanted a divorce, but they weren't getting anywhere.
   "My attorney was playing a waiting game and wanted me to play, too. Well, I was tired of waiting," Mrs. Limke says. "My feeling was that the attorneys on both sides were telling each of us to hld off, not to offer anything until one of us cracked, so to speak--until one of us got tired and gave in."  

WHAT FINALLY GOT the proceedings off the ground is a new service called divorce mediation. The method is gaining acceptance nationwide as a way to unclog divorce courts, save time and money and, perhaps most important, make the unpleasant task of divorce more civilized.

   The mediation service headed by Schneider, who has a PhD. in psychology, is a program of the Pastoral Psychotherapy Institute in Park Ridge, which is affiliated with Lutheran General Medical Center. Twenty-five couples, most of whom learned of the service by word of mouth, have passed through Schneider's program. It si the longest running of several area mediation services which recently were consolidated as the Illinois Mediation Council in Chicago.
   Also, Chief Cook County divorce judge John Fleck had taken steps to organize a mediation referral system for Cook County's contested cases before announcing his resignation, effective June 1. A spokesman for his office said he hopes that the program, which was to involve about 50 area mediators, will begin operating this summer under his as yet unnamed successor.
   Mediation is a relatively new service. Every state but Hawaii has at least one private mediation service, and several states have informal referrals through the courts, according to John M. Haynes, president of the Academy of Family Mediators, a New York City based group that has trained some 1,500 mediators. Last year California became the first state to make mediation mandatory in all cases involving custody or visitation rights.

THE PROCESS works this way: The couple sits down with the mediator, usually a lawyer or psychologist versed in marital matters, and discusses possible settlements. Schneider uses a 4-foot high paper tablet on which he lists headings such as "assets," "debts," "property," "visitation," and other areas the plan must address. Once details are resolved, the mediator sends written copies of the agreement to each attorney. The attorneys then draw up a formal agreement that is presented to the judge for approval.

   Schneider's group sets a three-month limit [usually eight sessions] for the mediation, figuring a court battle is inevitable if the couple cannot resolve differences by then. Generally, the couples have reached a settlement in four or five two-hour sessions, Schneider says, though some individual sessions have lasted well past midnight. 
   In the traditional "adversarial" method, the couple's attorneys draw up the agreement, or in the most hotly debated cases [only about 2 percent of all cases filed], the case goes to trial, and a judge hands down the rules.
   Theoretically, divorce mediation does not sound radically different from the adversarial approach because each party still is advised to have an attorney, In practice, however, officials are finding that mediation produces impressive psychological benefits and settlements that are tailor-made for each family. Studies also indicate that children seem to recover more quickly from the trauma of divorce when the parents use mediation.
   Park Ridge attorney Dick Nelson, at his wife's request, used a mediator for his own divorce after a 25-year marriage. He has vivid recollections, from his experience in matrimonial law, of some contested cases handled through the courts. "I remember one case in which a woman jumped over a railing and hit her husband's attorney. I watched another case in which the wife hit her husband in court and then fainted," Nelson says.
  
 

  WHILE SUCH physical confrontations are rare, nearly everyone agrees that tensions between the husband and wife often escalate when they hire attorneys and go to their respective legal corners. As Nelson puts it, "Sometimes an attorney will come on as a great champion, fire up his client and make him bitter when the case might have been easy. I personally wanted a settlement where I'd be on decent speaking terms with my wife and where the kids would not be unduly harmed." The nelsons' sons are 16 and 17.
   He seems to have gotten the desired results. His former wife, Barbara, who was interviewed separately, said: "I feel that Dick and I can communicate better now, having done it this way than with a trial. I did not have a feeling in my heart that I was out to get my husband in the divorce, and I don't feel he was out to harm me. I've watched friends whose divorces went on for years, and when I saw what happened to them, I wanted no part of it. The bitterness and anger that builds up is unreal."
   Schneider, a velvet-voiced United Methodist minister, believes that divorce mediation encourages the idea that "the family is not at an end, it is just being reorganized. It is continuing in a different form."

THE MESSAGE in the courts usually is quite different.
   Hugh McIssac, director of the family mediation and conciliation service for Los Angeles County, explains: "In a trial court, you're really attempting to assess what was done in the past, what was bad about each person, in order to make a decision. Mediation focuses on the future." 

   "In an adversarial system," agrees Jessica Pearson, director of the Center for Policy Research in Denver, which has completed a study of mediation with the Colorado Bar Association, "you're trying to show why one parent is unfit. The parties are trying to cast one another in a derogatory light. Mediation moves away from this defensive situation to a spirit of compromise."
   The nature of law makes antagonistic court strategy inevitable. It is an attorney's duty, in an adversarial system, to take one side against the other, to try to "win" against a foe. To use this approach with a family, however, is inappropriate, say mediation supporters, which include Chief U.S. Supreme Court Justice Warren Burger. As one official put it: "The spouses are neither criminals nor enemies."
  
JOY FEINBERG, a Chicago divorce attorney and consultant at the Psychotherapy Institute, observes: "Once the person gets a divorce, he's dropped by the attorney like a hot potato. The attorney can't go home and live with the people and be sure everyone sticks to the agreement. The result of the divorce has to be to allow the parties to know how to continue to work with each other."
   If one party believes he is the "loser," such cooperation is unlikely. The result is that a staggering number of cases go back to court for revisions after the divorce is final. One of the greatest advantages of mediation, officials say, is that parties are more likely to stick to an agreement they've helped write. In California, preliminary statistics show that the number of couples that returned to court after mediation was one-third the number following litigated settlements.

The attorney can't go home and live with the people

   "When you're dealing with something as intensely personal and powerful in an individual's psychology as divorce, there are many things you may be able to accept [more readily] if you are able to see and hear the intonation of voices, the nuances of the way a person sits, the body language," says Mack Detmer, 51. "I can't imagine having the same level of satisfaction if we had gone through the courts.
  
MEDIATION AGREEMENTS may be more imaginative than what a judge might impose, proponents say. One couple arrived at an agreement in which the husband retained equity in the house but still paid child support. Each month the wife sent him a check for his part of the equity, and he sent her an equal check for child support. The Detmers drew up an agreement to establish an educational trust for their children, administered by a trustee approved by the children.
   Haynes remembers another couple who had spent $28,000 in attorney's fees and had not spoken with each other for 12 months when they finally agreed to mediation. "When they came, they were locked in a hopeless battle over relative minutiae, "Haynes recalled. The disagreement centered around who would buy the child clothes, a mask for underlying fears that one parent was trying to take over as basic parent. "When they went through mediation, they were able to understand that neither one really was trying to take over and arrived at a very simple agreement."
 

   Although mediators do not like to emphasize the economic advantages of mediation, couples interviewed all said they believed they saved money. The Detmers, for example, had spent more than $3,000 between them on attorneys and court costs when they finally decided to use mediation, which cost about $700 [$60 per hour, plus a $120 flat fee for administrative costs].
   "My only regret is that we didn't start sooner," Sarah Detmer says. Haynes points out that in many parts of the courntry, attorneys ask for a $1,500 retainer fee upfront, and most charge from $75 to $100 per hour.  

MEDIATION IS not without its flaws. The chief "bugaboo," as Judge Fleck puts it, is the question of who is qualified to be a mediator. Some attorneys fear that nonlawyer mediators may give faulty advice on complicated tax and property questions. If any legal questions arise, Schneider says, both parties are asked to consult their attorneys.
   Social scientists, on the other hand, are concerned that lawyer mediators will not have the compassion or sensitivity to understand emotional problems underlying many divorce issues.
   Haynes's group, as well as the Family Mediation Association in Bethesda, MD., have launched 18-month training sessions for mediators that combine instruction in law and counseling. Schneider and Rosenzweig, of the Illinois Mediation Institute, hope to begin similar programs for the Midwest region.
   In the meantime, Fleck says he hopes the Cook County program will refer cases involving custody and visitation to the social scientists and finance-focused cases to lawyers. In California, only the former types of cases are sent to mediators, who must have a master's degree in the behavioral sciences and five years' experience in marriage and family counseling.
 

   Officials hope to develop a standard procedure to train and license mediators nationwide. Until then, says Virginia Martin, executive director of the 1,000-member Family Mediation Association, "I don't think it will be so much a problem of fraudulent mediators as poorly trained ones. We've had a few calls from people who have had bad experiences. I think they would increase as the field broadens."
   Some attorneys also anticipate problems with disclosure, that a client may reveal information about his financial holdings that later could be used against him if the mediation fails.

MEDIATION DOES not work for all couples. McIssac in Los Angeles says that of the 4,459 cases mediated last year in Los Angeles County, only 55 percent produced a signed stipulation that became a court order.
   "The best cases to mediate are with those families where you have two competent partners trying to work out the best arrangement for children for the future. The families that don't work so well are those in which one parent has a real deficit, where you have chronic hostility, where one partner is using the courts to get even.
   Jessica Pearson in Denver adds: "We have less success with couples who have been litigating for a long, long time. In a way it becomes a habit. Too much is invested in winning, so compromise is not a viable option. Sometimes disputes spread beyond husband and wife; you have family feuds in which step-parents, uncles, grandparents, are involved. It's one thing to negotiate with two people, another thing when you have an army on each side." Also families with a history of child abuse, alcohol and drug abuse or psychiatric disorders are poor candidates.
   Whatever its flaws, mediation seems a desirable alternative to fistfights in court. Barbara Nelson says: "When two people go to attorneys, they start fighting because the attorneys are just talking about two people. When you go to a mediator, you're talking about a family.