Divorce, civilized style

Mediation helps couples split with a minimum of rancor

By Sarah Guille, Standard-Times correspondent
October 3, 1997

Jim and Marie, married for 15 years, have come to a parting of the ways. They have two children, and are determined to make the split as painless as possible for them. Jim and Marie agree, in a series of meetings before their case ever comes before a judge, that Marie will get the house, Jim will keep his retirement, and they will share custody of the kids.

In this case, that means little Jimmy and Mary will stay with Marie in the house, but Jim will see them on a regular basis. They further agree to meet to talk about the kids on a monthly basis, to keep the lines of communication open, and never to bad-mouth each other in front of the children.

Holidays are arranged with the needs of the children in mind, visits with the grandparents on both sides are plentiful, and the children refer to the house of each parent as "home."

Sound too good to be true?

"I've mediated pet custody, how often the grandparents get to see the children." It's this attention to the more emotional aspects of a split, rather than the purely financial, that distinguishes the mediation process.

While lawyers make sure their clients' best interests are brought to the table, a mediator, Dr. Fellouris said, "does not put anything 'on the table,' but rather oversees that both people share what is on the table."

For any settlement to stick, Dr. Fellouris said, "Both people have to live with what they agree to." If one or both parties feels cheated or overburdened by the divorce agreement, the relationship will continue to deteriorate, but, "if both feel they have a vested interest in the outcome, and have worked to create something that will last, they will be happier."

Through the help of mediation, Dr. Fellouris has seen divorced couples manage to rise above their personal circumstances. There's the couple who got along to such an extent that when the mother and her new husband relocated to another state, the father drove the children to their new home himself, and helped them all get settled in.

Or another couple who shared a celebratory sandwich and a cup of coffee at a deli near the courthouse moments after the judge issued their divorce decree.

To proceed with mediation, husband and wife are asked to draw up two lists, one of assets and one of requests (Dr. Fellouris describes these as "what-you-have and what-you-want" lists). The couple must also make a full disclosure of debts and liabilities.

The mediator takes the couple through the lists, seeking clarifications, ordering priorities and offering compromises.

The final document they create is called a memorandum of understanding. That is either presented to a judge by the couple themselves, or taken to a lawyer who presents it in court, where it becomes the divorce agreement.

While Dr. Fellouris has taken courses at the Southern New England School of Law, she makes it clear that she does not offer legal representation for the divorcing couple.

"The courts will not grant a divorce unless the agreement is fair and equitable," she said, particularly where such issues as child support payments and division of property is concerned. Many couples will hire a lawyer to accompany them to court.

Sometimes a mediated divorce can be less expensive than a litigated divorce. It can take fewer sessions to work out a divorce agreement, and the hourly fee for mediators can be less than the hourly fee for lawyers.

Some lawyers, in fact, refer clients to mediators as part of the process, and some lawyers are also mediators.

Dr. Fellouris does not believe mediation is for everyone, however. If there has been domestic abuse, restraining orders issued, or if she believes one party is at a great disadvantage for one reason or another, she will recommend the couple seek legal counsel.

"I tell some couples to litigate if the power struggle is too great," she said. Few divorces today follow the onetime pattern of heated courtroom scenes, with judges handing out decisions based on sworn testimony.

As the number of divorces increases, and courts are increasingly overburdened by litigation of all kinds, most divorce agreements are worked out ahead of time.

In Rhode Island, the courts require sessions with mediators in a divorce proceeding, in an effort to ease the number of court appearances by wrangling parties.

In Massachusetts, mediation is not required, and a mediator does not represent couples before a judge.

More and more couples, however, are finding their way to mediators as a way to end their marriages with the least amount of blood-letting. Dr. Fellouris added mediation to her family and marriage counseling practice [in 1991], and finds the process a satisfying one for herself and her clients.

"If you are going to get a divorce," she said, "you should have results, not regrets."

If you know a divorced couple, if you are divorced yourself, or if you are a child of a divorced couple, the above scenario may seem like an impossible ideal.

As the years pass, Jim and Mary each remarry, but the children of their first union remain central to their lives. They both attend graduations, weddings, christenings and birthdays without acrimony or bitterness. They both see their grandchildren frequently, and a recent Thanksgiving dinner found them both sitting at their daughter's table, passing the potatoes in peace.

It could happen ...

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