Divorce With Love

By Anne. V. Martino

Ann Arbor News, Sept. 29, 1993

At first, Sheri Hays found it too painful to talk about the details of divorce. But at the urging of her husband, she agreed to talk – in divorce mediation.

Now she’s glad she did. “I think it’s a much better way, in the long run. It probably got us talking more,” says Hays, a 45-year-old Scio Township chemist.

Gary Marsh, a social worker at the Ann Arbor Mediation Center, mediated the Hays’ divorce, helping the couple agree to joint custody of their 15-year-old son; a buy-out in which Sheri kept the house (their son lives with her); and a long-range parenting plan that lays out virtually everything, from holiday visits to college tuition.

When the divorce becomes final next month, Sheri estimates she will have spent only about $900 for mediation and lawyer fees. Perhaps more important, she says she feels more positive about being a divorced parent than she might have after a long legal battle.

Mediation is one route to making divorce more peaceful. It is being advocated by a growing number of couples, lawyers, judges, and mental health professionals in Ann Arbor and across the country. All these people are concerned that when parents break up in a bitter legal war, children often suffer long-term emotional damage.

The most extensive example of mediation is in California, where the law requires divorcing couples to use it to try to work out disagreements over child custody and visitation. In Michigan, mediation is still voluntary, but at least around Ann Arbour, more couples are choosing it.

“The couples save money and time. They also retain the dignity that comes with being able to sit down and really chart their lives out – at a time when their lives are really out of control,” says Zena Zumeta, a lawyer and founder of the Ann Arbor Mediation Center.

The center, one of about 170 similar centers around the country, was started in 1981 and today handles about 100 divorces per year. The mediators who handle these cases are either lawyers or mental health professionals, who function as neutral third parties in a divorce and try to bring the spouses to an agreement.

Additionally in the background, lawyers representing each spouse look out for the parties’ individual interests.

The advantage of mediation over conventional lawyer-to-lawyer negotiation  is that the spouses, through face-to-face communication, make key decisions about child custory, assets, and other important issues in the divorce.

The process isn’t for everyone. Many couples still choose  a more adversarial approach within the court system, and many lawyers still say that process works better to protect the interests of their clients. But when mediation works, advocates say it relieves pressure from the court system, and also results in divorce settlements more tailor-made to the needs of individual families.

“Too often lawyers come up with cookie cutter, made-to-order solutions. If the parties are part of the settlement, they come up wit something different than you’d expect, with solutions that reflect their own needs better than if the lawyers do it,” says Sally Rutzky, an Ann Arbor attorney who often represents people going through a mediated divorce.

The trend toward mediation is suggested by court statistics. Over the past five years, the number of divorce cases pending at year-end has dropped from 1,092 to 758. It’s not that fewer people are filing for divorce; experts say that mediation, both public and private, is contributing to the decrease, in addition to such factors as increased court efficiency.

In Washtenaw County, the court system provides free, voluntary mediation for child custody and visitation – but not for property settlement, child support, or spouse support. For that, couples must go to a private mediator.

Advocates say mediation, unlike litigation, is not a win-or-lose proposition, but a process meant to resolve complicated, emotional problems.

Because it usually keeps the anger level down and leaves decisions to parents rather than the judge, mediation also tends to be good for kids, advocates say.

“Parents have a lot of common ground about what they want for their kids. They can lose sight of that in an angry divorce process,” says Mary Whiteside, a psychologist who works as a divorce mediator with two local lawyers.

Mediation also seems to open the door for spouses to resolve more issues – sometimes extending to how to finance a child’s college education , or how to divided anticipated retirement income; advocates say.

“The parties seem to be able to resolve about seven issues in mediation, compared with about five issues in a contested divorce,” says Monika Holzer Sacks, a divorce lawyer and trained mediator.

Besides being good for kids, mediation also seems to be good for those providing mediation services. Not only are they attracting clients, they also say mediation is a rewarding alternative to helping couples slug it out in court.

“I had one of those never-ending cases, and I decided my life was too short to spend it in and out of court, fighting about every Christmas and every summer vacation. Litigation is just too horrible -and too expensive,” Says Rutzky, who has been handling divorces since 1978.

Today, about 30 percent of Rutzky’s clients are people going through a mediated divorce. “I teach my clients how to negotiate. It’s a skill builder,” she says.

Similarly, many judges like mediated divorce, because mediated settlements often keep recurring domestic questions out of a court system that never was designed to handle them.

“There is less probability the spouses will be fighting each other through the legal system for years, for example, if the man doesn’t make alimony payments to the woman,” says Melinda Morris, chief judge for Washtenaw Circuit Court.

With so much praise from all sides, why doesn’t every divorcing couple choose mediation? Probably because while the process may sound nice, it isn’t for everyone, and it doesn’t always work.

Some divorcing couples are too angry or upset, and prefer to communicate only through lawyers. Others fear their partners will take advantage of them in mediation, so they choose a more adversarial route.

Many individual lawyers have reservations about mediation ,tool. “Mediation won’t work if the parties don’t agree on who should have custody. I defy anyone to come up with a way to divide a child,” says Ypsilanti attorney Peter Moir.

Ann Arbor attorney Jean King says many people going through divorce would rather have an advocate than a mediator.

“There’s no way on earth I’d send some people into mediation. They’d get mashed,” King says.

“If people can talk to each other, they can talk to each other. If they can’t, they need intervention, and what they often want is the protection of someone who will represent them,” King says.

King says she has been hired to redo several mediated divorces, after big mediation fees were charged. “Many people want a peaceful divorce, and if you’re Charlotte Ford, that makes sense. but often the economics of it mean you can’t come out peacefully,” she says.

Denise Fawcet, another successful Ann Arbor divorce attorney, says mediation works best when it is done with the rules of the court system.

“The more effective thing is to work with the other attorney, enter into a consent order that binds the parties to do certain things, such as go to mediation or arbitration, and get them over there,” she says.

In response to such viewpoints, Zumeta says most people who come to the center can work out tough issues, including child custody and money, through mediation. When custody is disputed, she says the mediator might, for example, urge the partners to start talking about the simpler question of where a child will be at what time of the day.

As for partners who seem likely to be steam-rollered in mediation, “That’s the reason we strongly encourage our clients to have their own attorneys,” she says.