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My Mediator is Not an Attorney? Is That a Problem/Martin Rosenfeld
I once participated in a study which involved mediators who were attorneys and mediators who were non-attorneys. The study concluded that the mediator-attorneys tended to view the issue at hand in legal terms while the mediators who were non-attorneys tended to view the issues more in interpersonal terms. Attorneys have different training than do other professionals and hence it is not surprising that their approach to mediation will reflect their specific training and expertise. Is it an advantage to have a mediator who is an attorney? I believe the answer to this question is the following: “that depends!”
With any professional, the most important concern is whether they practice their skill with proficiency and exactitude. A non-attorney mediator who is proficient in mediation theory will outperform the attorney-mediator, and vice-versa. The first question to ask therefore must address mediator competence and professionalism. This can be ascertained by reputation, referrals, examination of their writings, etc.
However, in truth, each mediator “category” brings important strengths to the mediation process. An attorney-mediator will have broad experience in Court procedures and practice. She will know what agreements fall outside the pale of normative behavior. She will have the insights garnered from seeing hearings, motions, trails, etc conducted before experienced judges. She will be aware of legal trends and developments. All these will be of great benefit to the client.
On the other hand, the non-attorney mediator may well have greater insight into the interpersonal dimension, into human behavior and needs, and into non-legal aspects of divorce. Divorce Law is more that legal directives. It involved feelings, emotions, needs, and aspirations. To ignore this aspect of the divorce process is to miss arguably the most important aspect of the divorce process.
There are advantages and disadvantages to different types of mediators. Ultimately, the choice of the mediator is a very personal one based on a comfort level and confidence. Do you feel at ease trusting your mediator with your confidences and vulnerabilities? If you do, all else will likely fall into place. Mediation is a challenging process. Choose the mediator who enables you to maintain the fortitude and conviction to see the process through.
To overlook the legal component of divorce law is to miss the “big picture”. To overlook the interpersonal component is to fail to pay homage to the need of the human to feel safe and directed at a time of potential trauma and hurt. Make your choice after soul-searching and careful deliberation.
Here’s a Huffington Post article on typical conflicts that come up when you’re driving with your spouse, what they mean, and what to do about it.
Here’s a link to the the powerpoint: Driving your Spouse Crazy.
Modern Lessons from Arranged Marriages, a recent New York Times article, weighs in on arranged marriage, and concludes that parental involvement may be very helpful to choosing a spouse.
Robert Epstein, Ph.D., a research psychologist at the American Institute for Behavior Research and Technology , finds the parental screening for “deal breakers” can be very helpful. Love can emerge in arranged marriage after the initial introductions. He has studied how love can emerge in arranged marriages in different cultures, and has developed new tools for rapidly increasing emotional intimacy in both new and existing relationships.
According to Epstein, feelings of love in arranged marriages tend to gradually increase as relationship continues. To the contrary, in “love marriages”, where attraction is based on passionate emotions, a couple’s feelings for each other typically diminish as time goes on. According to Epstein’s data, the love feelings are reduced by as much as fifty percent after only eighteen to twenty-four months of marriage. According to a study conducted in India, arranged marriages appear to surpass love marriages in intensity at the five year mark, and to be twice as strong as love marriages within ten years.
Everyone knows that stress can cause a lot of problems, so it should be no surprise that too much stress can harm your marriage. To protect your marriage from stress, first, you have to figure out what is causing the stress. This can be tricky, as spouses often get caught up assigning blame and passing judgement. A neutral third party, like a marital mediator, can help you identify the stressor(s) in your marriage: time-based stress, strain-based stress, and behavior-based stress. With the source of the stress identified, a marital mediator will help you and your spouse create a plan of action to improve your marriage. Read More
The widely publicized 50% divorce rate is limited to certain subsets of the population and is not the U.S. population as a whole. Factors, such as income, education, and age when first married, all influence a person’s likelihood of divorce. This raises the question, who has the highest risk for divorce? Read More
Can government do more to promote marriage? Kansas thinks so. The Kansas Department of Social and Rehabilitation Services applied for a federal grant of $2.2 million per year for three years to provide programs that encourage unwed parents to marry with the goal of reducing child poverty. Each year, about 19,000 unwed couples give birth to a child in Kansas. Since children who grow up in single parent households are more likely to live in poverty, state officials believe increased rate of marriage among these couples would decrease child poverty. Read More
If you are unhappily married, will divorce make you happy? Research says no. In fact, the opposite is true. Divorce tends to not alleviate depression, improve self esteem, or increase feelings of mastery of one’s life – key factors in achieving happiness. It is sticking it out through tough times, remaining committed to your partner, and resolving conflict that can make you happy. Read More
Our responses to this week’s marriage chat hosted by blackandmarriedwithkids.com.
Should spouses plan goals for the marriage?
Definitely! Working towards joint goals gives strength to your marriage. If you’re not heading in the same direction, you’re heading for disaster. Setting goals together is a way to connect with your spouse, allowing you to have regular conversations about what you each want out of your marriage and out of your future. Just as individuals need to work towards goals to be fulfilled. Marriages need goals to be fulfilling. The trick is to find ways to move towards individual goals and marital goals at the same time. Read More
Popular culture is filled with tales of finding a soul mate and falling in love. As children, we hear stories of princesses riding off into the sunset with their knights in shining armor, finding happily ever after. As we age, movies replace these princesses with average people who experience love at first sight. Their spouses are always perfect, marriages are effortless, and any disagreements are quickly resolved. But are these fairytales and fantasies skewing our collective belief on love and hurting our relationships? Read More
Faithfulness is the most important factor in a successful marriage, according to a recent survey by Pew Research Center. Participants were asked to rank nine items associated with a successful marriage as either “very important,” “important,” or “not very important.” The following graph represents the percent which responded that a particular quality is “very important” to marital success. Read More
Today’s parents are embracing the mindset of “staying together for the kids” out of a desire to protect their children from the pain of divorce. But parents must also protect their children by preventing conflict. Parental conflict, regardless of divorce, can have a long term effect on children, including an increased the likelihood that children will experience relationship failure and divorce themselves. Read More
It is estimated that 65% of people who remarry have a child from a prior relationship. In reality, the percentage could be higher because there are no accurate statistics about the number of stepfamilies (when at least one spouse has a child from a previous relationship) and blended families (when there are children born of the marriage and at least one child from a previous relationship). Household demographics focus on the makeup of a child’s primary residence, indicating whether the custodial parent has remarried. Demographics do not usually consider when a child is a part of a stepfamily because the non-custodial parent remarried. Current methods of reporting also ignore the fact that one child can be a part of two stepfamilies if both parents have remarried.
Despite shortcomings in calculating the actual number of stepfamilies and blended families, there is information available about the divorce rate in these families. Statistics consistently show that the risk of divorce is higher in marriages that have children from prior relationships, as compared to marriages without children from prior relationships. Stepfamilies and blended families tend to have additional stressors due to the dynamics of the relationships involved and the more complex family structure. When there are children from previous relationships, many couples find it helpful to address parenting issues before having children together. Marital mediation is a comfortable environment in which couples can explore the challenges and sources of conflict within their family, then develop solutions together.
Couples must learn how to balance being a devoted spouse and a devoted parent or stepparent. Stepfamilies are usually given advice that the children must always come first. Under this approach, spouses easily become consumed with the needs of the children and dismissive of the needs of each other. This can result in a decrease in marital stability. To create a lasting marriage, it is important that you make your marriage a priority.
Historically, attention has focused on the difficulties children face in adjusting to a new family situation, while ignoring the challenges spouses face in adopting the stepparent role or adapting to a joint parenting style. Each spouse enters the stepfamily with their own traditions, family norms, and expectations. This can be a major source of conflict, especially when spouses disagree on child rearing issues. In order to have strength as a couple, it is important for both spouses to be comfortable with the decisions made regarding children.
In marital mediation, couples can develop a unified parenting approach. A couple can work together to establish clear rules, appropriate expectations, and acceptable standards for behavior for all children of the household. The couple can develop a framework for the types of decisions regarding children that will be jointly made. Additionally, the couple can work towards defining the stepparent role. For example, to what extent does the stepparent participate in discipline?
In addition, there may be other stressors due to estate planning considerations. For instance, a person in a second marriage who has children from the first marriage may wish to put estate planning in place to ensure that part of his or her estate goes to the children of the first marriage. This can be done through a prenuptial agreement prior to the second marriage, or by a postnuptial agreement after the marriage. If it is not done, it can cause severe conflict between the spouses and the children that could lead to divorce.
In stepfamilies and blended families, problems are usually based on the dynamics of the relationships involved and the complex interactions among family members. Effective conflict resolution skills are needed to handle matters involving children, especially since these are often emotional issues that require sensitivity. In marital mediation, spouses have goal-oriented discussions and learn necessary communication skills. When spouses in stepfamilies and blended families participate in marital mediation, they are more likely to have strong marriages and stable families.
The Center for Work and Family at Boston College researched the changing view on fatherhood through a series of in-depth interviews. The results of the study show that increasing numbers of men define the role of father as someone who has breadwinning and caregiving responsibilities. The fathers reported that many caregiving responsibilities were as important, if not more important, than financial responsibilities when defining what it means to be a good father. Fathers under the age of 40 are a little more likely to place a greater emphasis on caregiving.
The study also showed there is a gap between what fathers think they should do and what they actually do. Despite a desire to equally share in caregiving responsibilities, many fathers reported that in reality, they do not. Financial and career responsibilities dominate most fathers’ time. More than half of participants believe their job prevented them accomplishing everything they need to do at home, and slightly less than half reported their job interrupts time with their children.
How spouses share financial responsibilities impacts whether caregiving responsibilities can be shared equally. When there are high financial expectations, it is possible that many fathers cannot participate equally in caregiving responsibilities. The men who participated in the BC study earned significantly more money than their partners, and 56% of participants had a spouse who is unemployed (31%) or only works part-time (26%).
The BC study concludes:
“Thus, we are left with an image of today’s fathers as caring, committed and conflicted, struggling to be engaged parents while striving for advancement in their careers. This leaves us with the obvious question: can they have it all? Can they increase their caregiving role without sacrificing their advancement goals in their workplace? Or must they adjust their expectations – redefining what it means to be successful in both domains?”
One of the primary recommendations in the BC study is for fathers to explore their parenting goals in combination with their career goals. Marital mediation encourages spouses to examine together in a controlled setting with a neutral mediator how their ideal situation for sharing financial and caregiving responsibilities differs from the way responsibilities are actually shared. Spouses can reflect upon how splitting responsibilities impacts their goals. Marital mediation is a good way for spouses to explore parenting roles and create a plan on how to balance between competing responsibilities and correlate or adjust career expectations.
9-11-2011 to 9-17-2011
The latest marriage news:
- The U.S. ranks in at #5, but can you guess which country has the highest international divorce rate?
- Marriage isn’t outdated. Young Americans think marriage is an important life goal.
- Michigan postnuptial agreements are divided into 3 categories according to enforceability.
Here are other articles our readers were interested in this week:
- Reviews of books to help your marriage.
- Deciding whether to divorce – A rule for couples having difficulty.
- The effect of Facebook and other social media websites on your marriage.
This week’s most popular marriage advice based on Twitter retweets.
- Respectful assertiveness is necessary for marital communication
- Next time you’re frustrated with your spouse, remember your vows were “for better AND for worse”
- Stop assuming you know everything about your spouse. Ask questions. Show interest and curiosity
Michigan law divides postnuptial agreements into three categories. The requirements and enforceability of a postnuptial agreement depends upon its classification. First, postnuptial agreements that are entered by spouses who have separated will be upheld as settlement agreements. Second, postnuptial agreements that deal with inheritance rights are valid, provided the agreement is fair, equitable, and has consideration. However, the third category, postnuptial agreements that deal with divorce rights, entered by spouses who are not already separated, are unenforceable in Michigan.
As recently as 2008, Michigan courts declared unenforceable those postnuptial agreements that are entered before separation and deal with property distribution at divorce. In Wright v. Wright, the court reiterated Michigan’s prohibition on spouses entering contracts that anticipate or encourage a future separation or divorce. Such contracts were held to be against public policy, relying on case precedent from the nineteenth and early twentieth centuries.
Generally, alimony and property settlement provisions in postnuptial agreements are considered to anticipate or encourage future separation. As stated by the Wright Court, an example of when this occurs is if the postnuptial agreement leaves a spouse in a better position in the event of a future divorce. Under this theory, the postnuptial agreement at issue in Wright was held to encourage future separation or divorce. The agreement attempted to protect the husband’s premarital assets and retirement accounts. The agreement also declared all marital property that required substantial financial investment from the husband, including the marital home, was to be the sole property of the husband at divorce.
The primary issue appears to be whether separation or divorce is contemplated when spouses enter a postnuptial agreement. Michigan did uphold the validity of a postnuptial agreement at divorce, even though it was entered before the spouses separated and it did not deal solely with inheritance rights. In the 1965 case of Randford v. Yens, a divided court upheld the postnuptial agreement because it found the agreement did not anticipate or encourage divorce. The purpose of the postnuptial agreement in Randford was to determine what property rights already existed, not to change or define future property rights. Both spouses had substantial premarital property and a conflict arose as to the status of a particular piece of property. The postnuptial agreement was entered to eliminate confusion regarding what property was separate and what was marital.
While states across the nation are changing their public policy to reflect approval of postnuptial agreements, Michigan appears reluctant to change their long-standing public policy. While the Wright case was decided by the intermediate appellate branch of the Michigan judiciary, the state’s highest court declined to address the issue. The Supreme Court of Michigan denied the original appellate request and the request for reconsideration.
Originally, Michigan viewed prenuptial agreements as a way to circumvent the legal duty to support a spouse; a view the court still holds regarding postnuptial agreements. Michigan’s support of prenuptial agreements is not likely to influence the courts’ view on postnuptial agreements in the near future. The public policy considerations that allow prenuptial agreements to be enforceable are not easily applicable to postnuptial agreements.
When Michigan changed its view on prenuptial agreements, it was for two main reasons, according to Rinvelt v. Rinvelt. The court stated that without the ability to organize finances prior to marriage, people would choose to stay in informal relationships rather than get married. Additionally, the court reasoned that dealing with finances prior to marriage would foster permanency of the marriage. These viewpoints would be hard to attach to postnuptial agreements.
Without a major change in public policy or the legislature providing for postnuptial agreements by statute, a change in enforceability of postnuptial agreements in Michigan is unlikely. Michigan has classified pre-separation postnuptial agreements as different from other marital agreements. Under current law, postnuptial agreements that anticipate or encourage a future separation or divorce are unenforceable.
Our responses to this week’s marriage chat hosted by blackandmarriedwithkids.com.
How should spouses address disagreements?
Spouses need to give each other the time and space to be heard and to process what the other is saying. This can’t happen when there is yelling or if one is always talking over the other. Poor non-verbal communication may also a negative effect. It’s amazing how much subtle and not-so-subtle body language can skew a conversation.
If you and your spouse have trouble giving each other the opportunity to be heard, try setting some ground rules. If yelling is an issue, make a deal that you’ll take a break if emotions get too strong and return to the conversation when you’ve each had a chance to calm down. Take turns talking for a set amount of time uninterrupted. If rolling of the eyes, or other non-verbal communication, gets in the way, go for a walk or a drive to make it less likely that you’ll get distracted by each other’s expressions.
Should spouses make a plan for how to come to an agreement after an argument?
Having a plan for how to reach an agreement is nice in theory, but once emotions are added, the plan can quickly go out the window. There isn’t a one size fits all approach to solving marital disagreements. Different phases in the relationship and different problems will require you to learn and use different skills. If spouses hold on too tightly to a specific plan, there may be times when it’s like trying to fit a square peg into a round hole. It’s better to have communication and conflict resolution skills that will lend themselves to a variety of situations. Marital mediation is one way that spouses can learn those skills.
Is the saying “never go to bed angry” doable? Why or Why Not?
Yes, it’s possible to not go to bed angry, but that doesn’t mean the issue is resolved. “Less angry” is a pretty good standard to aim for. Sometimes you have to recognize that you’ve done all you can for one night. If you’re not getting anywhere in the discussion, the disagreement won’t get easier to resolve as you get tired and cranky. A little space to reflect can make things look different in the morning.
What is your best advice for handling anger & disagreements in your marriage?
Forgetting about “winning” the argument. Nobody wins when spouses fight. Ask yourself if this fight is worth ending your marriage over. If it’s not, then the only thing that matter is compromise. Do your best to keep things in perspective. It’s not the first disagreement you’ve had with your spouse, but it could be the last if you let it go too far. And never forget the power of saying “I’m sorry”
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