When an estranged husband and wife first enter the New York office of divorce mediator John Haynes they have no choice but to sit together on a couch and face Haynes, who sits in a chair at their same height, and at a distance no more than three feet.
While husband and wife settle down, nervously glancing at each other and piling handbag, coats, or pillows between them, Haynes offers coffee or tea and asks the spouse closest to a small serving table to pour for all three.
"It is, to say the least, a tense time, but unexpectedly eased by the calm and a little elegance of china cups and tea," explains British-born Haynes, who enjoys pointing out that once the husband figures out the tea routine he subsequently always sits where he doesn't have to pour.
The other prop in this mediation setting is a large easel with a hefty pad of paper, which -- over the weeks -- will serve to chart the couple's "financial needs and parenting issues."
The tea, the seating arrangement, the paper and easel, even the cool blue colors in Haynes' room are calculated implements of divorce mediation -- a private and agreeable settlement between two people who plan to dissolve their marriage.
Divorce mediation, an alternative to litigation and arbitration, is fast rising in this country where marriages fail at a steady, 40 percent rate annually. First appearing in the late seventies, mediation now has the support of the American Bar Association and is legislated in some 12 states. Basically, mediation differs from litigation in that it is quicker (an average of 12 to 15 two-hour sessions), less expensive ($75-$100 an hour) and most important, according to its supporters, it allows the couple more power and privacy in handling their affairs and is consequently less adversarial and painful.
Larry Ray, staff director, Special Committee on Dispute Resolution at the American Bar Association, calls mediation "a good thing," adding that according to ABA's standards, "Users must realize they should be in contact with an attorney so they have full knowledge of their rights."
It also must be made clear to the couple that the mediator is not a litigator, even though he/she may have a separate legal practice. Ray estimates that 40 percent of mediators are attorneys. Lawyers, apparently, are not threatened by the surge of mediation and the courts are particularly encouraged by how it relieves the heavy, time-consuming load of divorce litigation.
In mediation, the divorcing couple -- with the help of their shared mediator -- draws up an "equitable" settlement that is drafted into a "Memorandum of Understanding" for each spouse to take to his/her attorney for review, advice and incorporation into the formal Separation Agreement to be filed with the court. (Note that a lawyer's services are still required according to most state laws.)
For the past five years, John Haynes has been training lawyers and social therapists to be mediators throughout North America, Canada and parts of Europe. To date, mediation is not a certified or licensed profession, so Haynes and others like him regulate it by accepting for training or internship only professionals -- people with a graduate degree in law or the social sciences.
"Out of the typical 20 or 30 students in a class," says Haynes, who was in Washington for a recent mediation seminar, "only one-third will go on to set up an active mediation practice. Another one-third will decide the profession is not for them and the remainder will simply incorporate what they learned into their existing profession."
Haynes sees the role of the mediator as one who effectively "bridges" the couple's financial and personal needs from where they are now to what they each "hope to have" two years from now.
"We don't ask a divorcing couple to articulate their goals for one year from now," says Haynes. "That is too soon when they are just trying to survive. Two years is more realistic and less threatening."
The mediator collects "all the facts" on expenses, income, assets and debts in a second session held separately with each spouse. The figures are then combined (there are often discrepancies to be discussed and ironed out) and itemized for subsequent sessions when all three meet to negotiate who gets what share.
"This is no small task," says Haynes, "when dealing with two people who haven't been able to talk or agree on very little for the past three years."
According to Haynes, it is up to the mediator "to help some couples face the fact that divorce may mean living at the poverty level. When they understand the reality of the situation, the chances of either party blaming herself or himself or the spouse for the new financial situation are diminished."
And yet, says Haynes, "It's not worth looking at what items or costs the couple can each give up. It's better to see how they can increase income."
Delays, he says, are almost inevitable. week, the husband and wife talk to their friends, or rethink what financial problems they don't want to have happen to them."
There are also the constant, resurging problems over the children, the matter of trust, anger, grief and a general panic over the impending final separation.
"A mediator has to be patient," says Haynes, "and allow the couple to go at their own pace."
When there is blatant conflict between the couple -- with the mediator barely able to get in a word -- Haynes recommends "positive reinforcement to positive behavior," which may mean "reframing" what the couple is saying. For example, when one says "I want what's best for our son," the mediator responds, "I'm sure you both want what's best for your son."
Another negotiating key is to "recognize and legitimize" a conflict rather than "glossing over or denying it." Such gloss/denial tactics are often considered a "power play" when used by one spouse. Haynes tells of one client who walked in on the first session and "plunked down a 25-page, detailed" document of their financial situation "as he saw it," claiming, "There's no problem. All the answers are right here."
Another couple, says Haynes, took "one and a half times longer" to close their agreement because they both were so "gentle and genteel with each other that they couldn't face up to the reality of the divorce."
Mediating couples are often asked to resolve, between sessions, the small issues -- such as the cost of a month's groceries -- before they tackle the larger, more difficult issues, such as sharing a pension. Couples are also encouraged about the issues they already agree on, such as how much money it takes to clothe their children or provide their schooling.
Mediation doesn't claim to provide divorcing couples with a 50-50 deal, but with what the experts see as a fair deal. Larry Gaughan (pronounced gone), George Mason University law professor and a divorce mediator who has settled some 250 agreements at Family Mediation of Greater Washington in Arlington, describes a successful mediation as one in which each party reaches 75 percent of his or her goals.
There are no predictions as to how smoothly a mediation will go -- no matter what the couple's financial status. Says Gaughan, "I had a finely tuned agreement over $6 million worth of property take place in four hours, and then I have had lengthy negotiations for $50 a month support."
Power struggles between the couple -- battles over who gets the most -- "aren't that much of an issue with the type of people who choose mediation over litigation," says Gaughan. "What is more important is the inability of one partner to come to terms with the fact of divorce and get on with their life."
Mediation is not for everyone. Some couples, says Gaughan, are "out solely for themselves and ready for a fight." If such a couple seeks his assistance, "I usually insist on them seeing their attorney first." Gaughan also feels that mediation is difficult for couples involved in child or spousal abuse.
* "Generally," he says, "if a couple can self-select into mediation and agree on a mediator and get themselves to the mediator, and if the mediator is reasonably experienced, the chances of a successful mediation are great."
However, he warns, "If you have an inexperienced mediator who is unaware of what the courts are doing, the wives in particular may not do so well."
*A Virginia woman tried two mediators before finally settling on a litigation lawyer who could represent her in court on a complex financial agreement. A Washington divorcee who had been married to an attorney for more than 20 years looks back with "great regret" on her mediation experience. She "took a risk," she says "and didn't get what I deserve. We divided our assets from the time of our divorce, but I get no percentage or interest from what my ex-husband is earning now or in the future. I also lose a large percentage of the sum if I should remarry.
"Our mediator said our agreement was 'right down the middle.' But considering my lower income and my husband's escalating income, it shouldn't have been down the middle. I lost a great deal."
*In contrast, some couples have met in mediation and canceled their final trip to the divorce court. One couple, says Haynes, was "relieved" when they couldn't negotiate effectively because they "weren't ready for divorce." Another couple negotiated a final settlement "unusually fairly," and six weeks later decided to drop the case and stay married.
Despite a great deal of caring and counsel at times, experts like Haynes and Gaughan insist that mediation is not therapy, nor is it legal counsel. Gaughan sees mediation as closer to the legal profession; Haynes sees it directly in the middle.
The mediator "isn't there to explain the couple's behavior or give them insight," says Haynes. "I am not their therapist. In therapy you have time and less control, and in mediation you have little time and more control."
Gaughan, a self-described "frustrated therapist," says he is "not pleased to report" that when he "tries to be a therapist and get the couple to communicate, I do less well. The key is not communication between the couple -- that can even be counter-productive -- but negotiation.
"We need to find a set of options that can be the next best thing to what they each want. Lawyers have more of that kind of experience and objectivity."
And if the negotiation and agreement work?
"Then it becomes good therapy," says Gaughan.