Divorce Mediation: The Past is Always Present
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By Rob Stewart, Contributor - August 09, 2013 - Updated October 04, 2013


divorce mediation

Divorce mediation focuses on the present and the future, on cooperatively developing a Marital Settlement Agreement that allows the parties to move forward with their lives, no longer as a couple, but as divorced individuals.

In a no-fault divorce, there is no reason to dwell on the perceived sins and failures of the past. Neither party has to prove that the other was responsible for the divorce, so bringing up the past serves only to create defensiveness and resistance. Therefore, divorce mediation seeks expeditious resolutions to specific challenges in the present so that the parties can enjoy more productive lives in the future. But despite divorce mediation's focus on the present and the future, the past is always present-- shadowy, murky, often elusive, but nevertheless a powerful influence on both the clients and the divorce mediation process.

Divorce is not a destination:

I have yet to work with a couple who married with the hopes and expectations of getting divorced. Divorce is the end of a journey that began with the hope and excitement of courtship and a shared vision of the future. But somewhere along the way, spouses find that perhaps they do not know or understand each other as completely as they had first thought. They realize that they do not always share the same vision, opinion, or even the same values that they had taken for granted when they married.

Often, an even more distressing situation develops: personal traits and behaviors that during courtship one party may have considered to be acceptable and perhaps even desirable in the other party, now seem to have mutated and become irritating and problematical, giving rise to criticism, anger, and resentment. Not understanding this change in attitude towards his/her behavior, the offending partner becomes confused, frustrated, and equally resentful.

When the parties are unable to communicate with each other about their concerns, about the changes in their relationship, about their perceptions of the other party's behaviors, the parties become ever more polarized until they eventually go their separate ways: they divorce. But the individual experiences and influences that gave rise to those differences continue to define the way each party approaches issues in the divorce.

The loudest voices:

I tell all of my clients that "the loudest voices in mediation belong to those who are not present." Sometimes the voices belong to specific people--family members, friends, co-workers--whose advice and admonitions actively influence the client's behavior. These voices are easy to identify and to silence. More often, however, the voices are the voices of experience, reflecting the individual's earlier triumphs, failures, hopes, disappointments, personal relationships and both the values and taboos of their family of origin.

It is these voices of experience that are of such concern in mediation, for these voices often are only shadowy whispers: ephemeral, elusive, often so shrouded or distorted by insidious fear and guilt that the clients are unaware of just how influential these deep-seated subliminal voices have been in their selection of a spouse, in their changed perceptions during the marriage, and in their rigid polarization during the divorce. It took me some time as a mediator to recognize those voices, to clarify them and turn up the volume so that the three of us--husband, wife, and mediator—could acknowledge and understand their powerful messages.

Facts, Solutions The “Best” Answer:

I was initially trained as both an accountant and an attorney. Therefore, as a mediator I focused on facts, on solutions, on the "right" or the "best" answer. Totally ignoring process, I found myself being very directive, and was often frustrated by my client's failure to share my clear perception of the optimal solution to a given situation. The more I tried to convince my clients, the more they resisted because I was deaf to the voices of experience that were relentlessly whispering to them.

This deafness to the voices of the past proved to be fatal in my very first divorce mediation case. The wife was seeking the divorce--she was having an affair which she anticipated would result in a long-term relationship. The husband was devastated by both the affair and the divorce--he could not understand what had gone wrong in the marriage, and what the "other guy" offered that he apparently lacked. The husband wanted to try working things out, but his wife was adamant that divorce was the only option, so there they sat in my office.

Reasoning that "you can't change the past," I dismissed the affair as simply being the coup de grace for a failing marriage. Therefore, all that remained was to draw up a Divorce Settlement Agreement and send the parties on their separate ways. However, the couple quickly reached an impasse over the distribution of a piano; both of them agreed that it had very little monetary value, yet both of them vigorously lobbied for sole possession. Since the wife was the only one of the couple who had any musical interests, I suggested that the wife get the piano and that the husband take an item of equal value. An easy, straight-forward, obvious solution to a simple problem.

When easy and straight forward doesn’t work:

But the husband pressed for the piano, prompting his wife to bitterly denounce his "tactics" of using the piano as leverage or punishment. The husband denied any such obtuse motive, and repeated his claim. Exasperated, I chastised the husband, and told him just to let his wife have the "worthless piano" and move on with the mediation. He stormed out of the session.

The mediation was over, and the parties embarked upon a long, contentious and bitter passage through the court system--far from the destination they had in mind when they married seventeen years earlier...

I was both shocked and affronted; after all, if the husband had only listened to me, the parties could have resolved this petty issue and continued with the mediation. I soon learned that it was I, not the husband, who had failed to listen.

Several years later—after I had successfully completed many mediations, and had also earned a Masters in Marriage and Family Therapy--I ran into the husband. I just had to know why he had so abruptly terminated mediation over a worthless old piano. His answer both surprised and shamed me.

When the past comes into play:

His father died when he was a small boy, and his mother ran away with another man shortly thereafter, leaving the boy to be raised by his grandmother. She was a kind and caring woman and my former client clearly adored her. When he got married, she gave him the piano as a wedding gift to remind him of the many times its music had lulled him to sleep. The grandmother died just a few months after the wedding, leaving my client with no family other than his new bride. “So you see,” he concluded, “while the piano wasn’t worth a lot of money, it still meant a lot to me.”

Suddenly I realized that the piano had been the medium through which the husband’s shrill “voice of experience” had been shouting in our mediation session. The wife’s affair and her insistence on the divorce had turned up the volume on the husband’s hitherto hushed voice of the abandonment, loss and rejection he had experienced when he lost both of his parents as a small boy.

The piano symbolized the only love and security he had known before falling in love and marrying. His adamant insistence on getting the piano was not a “tactic” to leverage or punish the wife; it was a plea for the wife to recognize his pain, his fear, his overwhelming sense of rejection. Had I only recognized the husband’s voice of experience, I could have helped the wife to understand and acknowledge his feelings, perhaps even to apologize for hurting him, and reassure him that he was a good person and a great father. Then the piano would no longer have been needed to speak for the husband, and the impasse would have been silenced.

Shortly after running into this first client, I began working with a young couple who had been married for only four years, and who were the parents of a fifteen month old daughter. The wife had initiated the divorce because the husband had ignored her repeated demands that he be a more devoted husband and a more attentive father. The husband was equally angry with what he described as the wife’s jealous, possessive nagging. They both agreed on one thing: the center of their controversy was the husband’s weekly “hockey night.”

The husband explained that one evening a week he and a group of male friends would meet to play hockey, followed by pizza and a beer; he insisted that he was always home no later than 9:00 p.m. While the wife agreed with this factual description, she angrily pointed out that she, too, had a full-time job, and that it was therefore unfair of the husband to expect her to stay home alone and take care of their daughter. When the frustrated husband repeated that his mother was willing to take care of their daughter for a few hours on “hockey night,” the wife bitingly replied that it was a father’s responsibility to look after his family, and that he couldn’t shift the burden to his mother.

By now, I realized that both parties were so angry and reactive that they were at an impasse. Picking up on the wife’s comment about having to stay at home alone with their daughter, I wondered aloud if the issue could be resolved by the husband’s taking care of their daughter one night a week so that the mother could have an evening to herself. Glaring at me, the wife snapped back that the issue wasn’t her staying home, it was his going out.

But, the husband bitterly interjected, hockey night had been part of his weekly routine for several years before he and the wife ever met, so why was she making such a big deal about it now?

I turned to the wife, who reluctantly agreed that the husband’s comment was true. In fact, she wistfully admitted, she had been attracted to the husband’s athleticism, his independence, his gregariousness. So what had changed to make hockey nights so problematical? “Because we have a child now,” the wife shouted, “and it is a father’s responsibility to be home with his family.”

This was the second time this session that the wife had asserted that it was the “father’s responsibility to be home with his family.” Could it be that a voice from the wife’s past—her voice of experience—was speaking here?

Eventually, the wife admitted that she feared her husband would become just like her father, who had died when the wife was young. The husband was clearly puzzled—was his wife afraid that hockey would lead to his untimely demise? After all, he wore a helmet, and the worst injury he had ever suffered was a chipped tooth. Hardly anything about which to be concerned, I mused, so just what was it about hockey nights that upset the wife so much?

Almost whispering through her tears, the wife revealed that he father had not died of a heart attack, as her family had told her husband. Her father had been an alcoholic, and often stayed out late at night drinking before coming home drunk and belligerent.  He was killed when, in a drunken stupor, he ran his car off the road and hit a tree.

Keeping Family Secrets:

Shame, resentment, and anger had kept the father’s situation a “family secret,” stifling the voices of fear, abandonment, and financial insecurity. The birth of her child unleashed these voices so that hockey night soon became the symbolic resurrection of a young girl’s nightmarish childhood. No wonder the wife so soundly rejected my suggestion that she have a night out—the issue truly was his going out, not her staying home.

Eventually, the husband was able to understand the wife’s seemingly irrational and oppressive insistence that he give up his hockey nights, and the wife was able to distinguish between her father’s irresponsible drinking from her husband’s casual beer. And even though the couple was unable to salvage their marriage, allowing the wife’s voices of experience to speak aloud paved the way for greater understanding and forgiveness.

Relieved of their bitter misperceptions of each other’s behavior, they eventually reached an amicable and workable agreement, and the wife entered individual therapy to help her quiet the disturbing voices of experience to an occasional whisper.

These stories are not unique; rather, they are representative of every mediation in which I have participated. In fact, even though family mediation focuses on the present and the future, each client’s thoughts, actions, and reactions are influenced by experiences in their past. Therefore, while mediation may focus on current issues such as parenting plans and financial settlements, the past—the voice of experience—is always present.

It is perhaps ironic that I have to rely on two hearing aids to compensate for a significant hearing loss, because even though these electronic devices help me to better comprehend my client’s words, only experience and the willingness to be open and inquisitive will help us hear that which is truly important in mediation: the voices of our client’s experiences.

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