Do the Children Fare Better in a Litigated Divorce or Through Mediation?

I recently had the opportunity to meet with a divorced couple and their four children. The children ranged in age from adolescence to late teens. The family unit was in turmoil secondary to the divorce and the way it was handled. I am sure the cost was over $100,000 for both sides, which is certainly a lot of money. This could have been resolved for less than $10,000 in mediation. The litigation was protracted due to the enmity of the attorneys, frustration and anger of the participants, and the turbulence created by the process. Sometimes it isn’t the family that is causing the major problem, but the policies and methods of the advocates themselves. Are the kids listened to more in the litigated divorce model or in the mediation process? Do the children fare better in a litigated divorce or through mediation?

For those not in the know, in the litigated model, the attorneys present their client’s views to each other and to the judge; at some point either they agree, compromise, or agree to disagree, and then the judge makes a decision. This differs from the mediated model, or a hybrid application, such as collaborative or cooperative divorce, where both sides (husband and wife) sit with a mediator/and or other affiliated professionals and each side presents their views. The mediator then helps negotiate the points until there is consensus, writes the documents, which allows the former couple to present the completed documents to the court, and if the judge sees that the process and documents are appropriate and has no questions, the divorce is then granted and finalized.

In the litigated model, sometimes children are heard and sometimes not, but either way, the decision is made by the judge, which is final. In the mediated model, the children are governed by the parents’ presentation of their requests to each other, and the parents make the decisions in terms of what they want, not a judge.

In this case, the main problem from the children’s perspective was their inability to be heard – heard by the advocates and heard by their parents. Once heard, the problems were able to be resolved by the parents to the satisfaction of the family unit. Parents who are divorcing need to listen to their children and understand that divorce affects everyone, not just them. While it is hard to listen to the children through all the frustration and anger exhibited by the parents, it must be done. Sometimes, parents think that only they are getting divorced and the children don’t really count, or aren’t adult enough to merit being heard. This is a major mistake that may fester and manifest into problems in the future. Poor grades at school, stomach aches, missing school days, getting up late, not listening to teachers, alcohol and drug use are just some of the ways that children and adults react to the stress and acrimony of divorce.

So what do we do?

First, we must realize that it is not just the husband and wife that are getting a divorce. It is the family unit, the children, house, dogs, cats, fish, etc. It is everything that the household is, represents or maintains, that will be ripped apart. We need to talk to the kids together and explain exactly what is happening. We need to put our family first and work out a schedule that makes sense. Putting children in untenable situations, asking them to make choices about which parent they want to be with or not be with, is WRONG! Blaming the children for the situation is WRONG! Even if the children did have something to do with it, we are supposed to be adults, and children must be allowed to be children.

We need to do first what is best for the children, the family and only then, ourselves. For example, scheduling should be similar to what the children are accustomed to. Additionally, when creating a visitation schedule, have the time make sense for you, the adult. Don’t try to schedule time to which you can’t commit. Don’t try to schedule time just because you want to frustrate or anger the other party. Don’t use the children in order annoy the other side. In the end, you will only be hurting yourselves, and more importantly, your children. Set up a schedule that makes sense for them and for you. If that means you may spend less time with the children but spend quality time with them, that will be better.

Getting angry only costs money, so why do so many people do it? While I realize it may be difficult, working with your ex regarding the kids will go a long way toward having a good divorce without all the frustration, anger and spending of money that many divorcing couples go through. A good divorce always leaves more money for the kids and the spouses rather than the attorneys. Sometimes our anger gets in the way, and then we have to pay more money for the advocates than we can give our children. It makes no sense, and we need to take a realistic view of what is really happening. In short, in most cases there is no reason to spend tens of thousands of dollars on a litigated divorce when mediation, cooperative divorce, and collaborative divorces are available.