Divorce or Separation by Consensus
Design Your Own Agreement
You are standing in a courtroom. You have had twenty minutes with a legal aid solicitor that you have never met before today. The man you married with love and hope 25 years ago is sitting across the court with his family solicitor, glowering at you. No one else is allowed in. You have the sudden feeling that they can do what ever they like, you have no control whatsoever. Final decisions are being made about where you will live, who will look after your 4 children, what you will live on. The solicitors huddle and mumble. It takes about thirty minutes. You walk away with your heart going like a Wellington boot in the tumble dryer. That’s it. It’s all over.
You meet your Mum for lunch and try to explain how things are going to be from now on. But really you don’t understand what’s happened. Your ex husband is driving away in the family car, also shell shocked and bewildered. This has cost him a lot of money in legal fees. He has lost the right to reside with his children, and the family farm will probably have to be sold to settle up and house you all in separate places.
Contrast this with sitting down together with an impartial mediator who smiles and says to you both,
‘You have come here to make big decisions about your life. Mediation is about assisting you both to make the decisions you need to make’
It is tough. It was never going to be easy. The mediator goes on to explain that she is not going to decide anything for you. She will guide and help you both my managing the process. The agreement will be your own. She is skilled and experienced at assisting people to have very difficult conversations. She will listen to you both. You can say whatever you need to say. There will be simple ground rules like equality, no interrupting, showing respect for each other and complete confidentiality. The mediator will be teaching you to collaborate as you move towards making those decisions for your selves. ‘This is about empowering you both to work through this together’ she says soothingly as you are about to run for the door.
Mediation is a voluntary process; key to the process in the voluntary participation of all parties. A Mediator is the professional who will have completed a foundation training, passed a skills assessment and gone on to further specific training in Family mediation. He/she will have had at least one hundred and sixty hours of training and a lot of supervised experience. They are completely impartial, concerned only with the well being of the clients and their children and with no other agenda.
Everything to do with the mediation will be confidential to the parties involved, although from time to time the parties may be advised to seek professional advice about such things as pension rights etc. Your mediator will also have been trained in relevant legislation, aspects of family finance etc. and what they don’t know about they will ask you to check out with your own solicitor/accountant as it occurs.
Mediation is based on the needs and interests of the parties and their children. In contrast to the legal route which is adversarial and is based on rights and entitlements and tends to discourage all attempts to cooperate. Make It Mediation offers a full mediation service for couples who are considering separation or divorce. We suggest an initial consultation to see if mediation is what you want, and then if you decide to proceed.
A Mediator encourages and helps the separating couple to co-operate with each other in working out mutually acceptable arrangements on all or any of the following:
Parenting the children,
Family Home and property
Other problems related to the separation.
Both parties must be in agreement that this is what they want to do and that they are willing to give mediation a go. You will be expected to be honest and to make full disclosures about income, assets and any thing else that is pertinent to both of you. (You would be forced to make these disclosures if you were taking your case through the legal route anyway).
Each session will have a definite theme, Finances, Family Home, drawing up a parenting plan, finalising and signing your agreement, and if all goes well the final session can include the children. This will be when you get to explain the whole agreement to them and they get to ask questions and to see that their parents are sensible and working together for the good of the family under these difficult circumstances.
When you have made your agreement and everyone is happy that they can live up to it, the usual route is that each client takes their agreement to their own solicitor, one solicitor translates the agreement into legal language and the other solicitor checks the accuracy of this, prior to it becoming a legally binding separation agreement.
This is a sample case of a mediated agreement:
Mary and Jim have been married for twenty years. They have five children, one boy and four girls. They live on the family farm in the farmhouse with Jim’s elderly mother. Jim milks eighty cows and rears the followers. Mary is a teacher in the local National School. Jim’s mother looked after the children when they were small so that Mary could go back to work. Their son, who is now thirteen, is keen on farming and helps his dad, as does one of the older girls. This life has been very demanding leaving little time for the relationship between Jim and Mary and they have grown apart. Lately Jim has become interested in a female sales rep who visits the farm regularly but Mary doesn’t know this. Mary wants to go back to university; she is claustrophobic, doesn’t get on well with the mother in law any more and no longer has any interest in farming. Jim goes to a solicitor to enquire about getting a divorce but is very shocked to discover that not only would he and Mary have to have been living apart three years, but he would probably have to sell the farm and divide the assets equally between them. One day Mary happens to walk in on Jim and the sales rep in a compromising position and a big row ensues. Eventually she goes to a solicitor who advisers her about her rights and in passing mentions the mediation option. After they have calmed down Mary finds out about the Family Mediation Service and they decide to seek the help of the FMS to get a legal separation.
At this stage they are both in entrenched positions, Jim, terrified that he will have to sell the farm, is refusing to budge. Mary knows her rights and is insisting on the farm being sold. However during the mediation it transpires that Jim is seriously worried about his elderly mother, who has helped to rear the children and is very fond of them too. He has no other skills but farming and cannot bear the thought of being separated from his children, especially the two who are helping him on the farm. Mary on the other hand, has no real affection for the farm house, the mother in law, or the farm but is worried that Jim might have more children with this other woman, and the farm might go to them, leaving her children out in the cold.
Eventually through basing the discussion around the interests of both parties and their children, it is agreed that the farm house would revert to Jim, a field on the other side of the farm with good road frontage would be sold for sites to pay for the building of a new house on the farm for Mary and the children, and the farm would be put into a trust for their five children with Jim being awarded a tenancy agreement for twenty years. The children would live with Mary but they would have unlimited time with Jim and his mother.
As it turned out Mary wasn’t that concerned about the other woman moving into the farmhouse because the children were nearly old enough to make up their own minds how they felt about her. Mary could also see that the old lady would need some caring for as she became more frail and she didn’t want the burden of that care falling on her or her children’s shoulders. Jim could see that he would have to give Mary some maintenance for herself and the children while they were still at school, but as she had a good job, her own pension prospects, and would have no mortgage, it was agreed that this would be reviewed when the youngest child was out of full time education. Both of them relinquished their own succession rights as part of the agreement. Jim offered to pay for Mary’s tuition fees in University out of the money he would have spent on legal fees had Mary insisted on going to court. But in the end these were paid for as part of the continuing education policy of the Department of Education and the school where she worked so the money could ‘go into the pot’ towards college fees for the children.
Oh but what about revenge I hear you say? ‘Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned’ (Congreve, W. 1697). ‘Whoever is willing to cause the most damage to innocent third parties and children will win. Yet in winning the victors lose their souls and suffer the greatest defeat of all’ (Cloke, K. 2001) and in the words of Mathew 16:26 ‘What is a man profited, if he shall gain the whole world and lose his own soul?’ What use is an agreement based on the lawful rights of parties, who may end up losing or damaging everything they loved, while clinging onto a rights based position? An agreement, which is beaten out by solicitors and stamped by a judge, can only reflect their understanding of the parties’ rights, based on the law and the ability of the lawyers to argue for those rights. Solicitors are trained to be advocates for their clients and experts in their legal rights and entitlements and are the gate keepers when one person wishes to hurt and damage the other. Mediators on the other hand are trained in helping people to engage in difficult conversations and listening to each other about things that important to them such as emotions and resources.
In attaching all outcomes to the rights of the parties and the law, the values inherent in our lives are lost. But what are values? They are our priorities, the choices we make when we see real and practical alternatives open to us and weigh up all the possible alternatives.
We know that every conflict involves pain to all of us especially the innocent.
Howard Zinn, a combat veteran of World War 11 wrote of Veteran’s Day 1999
‘World War 1 revealed the essence of war, of all wars, because however ‘just’ or ’humanitarian’ may be the claims, at the irreducible core of all war is the slaughter of the innocent, organized by national leaders, accompanied by lies’ (Cloke, K.2001)
Recent research has shown that when parents are hurt by one or other partner, they can create a syndrome known as Parental Alienation Syndrome (PAS).
However in the case of Mary and Jim it can be seen that behind the positions they started with, there are common interests. By using a collaborative approach Mary and Jim were able to use their values and their common interests to arrive at a workable and equitable agreement, without compromising the well being or the love of their children.