Divorce Mediation: Gentle Alternative to a Bitter Process – Written by Rabbi Adam Berner

“Family values” is a buzzword these days. We read about it in the newspapers and hear about it in political speeches and debates. From a Torah perspective, we applaud the espousal of these social values and national policies as they represent a return to our own traditional values. Judaism has always preached that the fate of the community is tied up in the fate of the family.

Despite these values, as Jews living in this century, we also share unfortunate social problems with our American society. The prevalence of divorce in our community is one such problem. Divorce, which causes even the altar in the Holy Temple to shed tears (Gittin 90b), is an unfortunate and disruptive event not only for the individuals involved, but also for their friends, families and community. Still, if divorce is the inescapable route that a couple must take, the Torah recognizes this reality and prescribes how to deal with it.

But beyond the event of divorce itself, our community must address a related societal concern — the bitter, hostile and destructive consequences which may result when a husband and wife separate and end their marriage. Whether adjudicating their divorce through civil court or through a beit din (Jewish court), all too often it is done with one spouse pitted against the other, as adversaries. The repercussions of this adversarial attitude cannot be overstated. It is destructive to the couple themselves, their children and to everyone around them.

The Conventional Divorce: An Adversarial Process

A look at the conventional method for obtaining a civil divorce reveals a general attitude of conflict and competition. Why do the friends of a spouse who is contemplating divorce encourage their friend to seek a “shark” for an attorney so that (s)he can soak the other spouse for all (s)he is worth? Why must one spouse be compelled to prove that the other spouse is an “unfit” parent so that (s)he does not “lose” the children? Why do the civil courts refer to one spouse as “plaintiff” and the other as “defendant”? These strategies and this nomenclature accurately demonstrate that in our surrounding society, an adversarial nature (plaintiff versus defendant) is inherent to the process of divorce.

This is not the Jewish approach. From a Torah perspective, an ex-spouse is not a categorical exception to the Biblical commandment of loving thy neighbor. Love and the pursuit of peace is mandated even for those in the midst of conflict. Our Sages teach us that Truth¹, Justice², and even God’s Name³ are compromised for the purpose of establishing Shalom. Indeed, for a Jewish family, just because there is not one bayis, does not mean there should not be Shalom.

But is there an alternative? Can there still be a place for family values, or better yet, Jewish values within the divorce process? Reiterating the query of Rabbi Avrohom Pam shlita⁴ in a recent address calling for a civilized approach to gittin, “Why cannot the task of dissolving the marriage be approached with respect and humanity — with menchlichkeit?”

A Better Alternative: Mediation

In fact, there is an alternative, a process steeped in family and Torah values. That alternative is a process called mediation. And despite a surge of popularity of mediation over the past decade, most divorcing couples and the community at large are simply unaware of mediation, or are uncertain as to how it can be helpful. To correct the most common misnomer, mediation is not marital counseling. Divorce mediation, rather, is for couples who have decided that separation or divorce is inevitable (hopefully, with the guidance of therapists and/or rabbis). Once that decision has been reached, mediation deals with the divorce, helping the couple and their children move on with their lives while avoiding all the unnecessary scars from that decision.

Divorce mediation is a family-centered process guided by a trained, neutral, third party who guides divorcing couples to work through the issues and decisions of a divorce within a collaborative framework. Instead of focusing on adversity and competition, mediation focuses on mutual problem-solving and the best interests of the entire family. Separate conflicts become joint concerns. Mediation thus challenges the methods and assumptions of the adversarial divorce process. It helps to dissolve a marriage by focusing on the future, not by getting stuck casting blame for the past. It seeks to resolve all the pending issues with communication and cooperation, not with adversity or animosity.

In an informal and safe environment, a mediator helps parties communicate and prioritize their needs and goals. One of the most difficult aspects for divorcing couples is the experience of disempowerment and frustration with the divorce process, which they do not understand and over which they have no control. In mediation, the parties retain control of the decisions that relate to their own lives and to the lives of their children. Mediators never make decisions. The most intimate details of one’s future life are not left in the hands of strangers, be it a judge or lawyers battling out strategic positions. Rather, the mediator empowers the couple through the process, facilitating their negotiation towards their own informed and fair agreement, on their own terms, with their own values and priorities.

In mediation, parties work out all the legal issues necessary to finalize their separation or divorce, from parenting (custody and visitation) and support to property division and tax implications, in a faster and less costly process. But the benefits of mediation do not stop there. Informed of, but unrestricted by the narrow parameters imposed by the law, mediating parties can use the flexibility of the process to forge a creative agreement, tailored to the unique circumstances and needs of their own family. Not surprisingly, research has shown that compliance and satisfaction with mediated agreements is higher than those imposed upon divorcing couples by a third party, i.e. a judge.

In contrast to the conventional adversarial divorce, mediation views divorce as an ongoing emotional and family problem, not just a one-time legal problem. Divorce represents the dissolution of only one relationship, that of husband and wife. It does not and should not rupture the entire family, especially concerning relationships between parent and child. In mediation, divorcing parents are trained to develop the necessary skills for successful co-parenting required by their new family status.

As hostile as a couple may feel towards each other, through the help of the mediator, spouses learn to separate the issues and the negative energy they have between them and learn how to focus attention on the truly important matters — on their children and on the decisions that have to be made for the future. The mediator acts as a guide, helping couples to restructure their family — not dissolve it.

Mediation is not an isolated process, but one which seeks guidance from outside attorneys, therapists and rabbis to inform couples of their rights and responsibilities as parents and separating couples. One such right and responsibility which concerns the Jewish community is the get (Jewish bill of divorce). Mediation offers a fresh opportunity to alleviate potential problems with this concern by its orientation towards cooperation and communication. While mediation cannot solve the agunah problem, it can reduce the number of problems by directing couples away from an adversarial and hostile process. A potentially recalcitrant spouse will be less likely to take a hard-lined and unreasonable posture against the other. In mediation, a spouse is more likely to be influenced by the interdependent process, oriented towards collaboration and consideration.

Mediation as the Ideal Jewish Form of Conflict Resolution

From a Jewish perspective, both in a halachic and a philosophic sense, mediation is an ideal process of conflict resolution. Because mediation is not a formal judicial proceeding, it does not violate the Biblical prohibition for a Jew to engage in legal action in a non-Jewish court (archaot)⁵. In fact, by drafting a separation agreement in mediation, a couple seeking a civil divorce will never have to appear in a non-Jewish court, thereby entirely avoiding this Biblical prohibition.

Moreover, mediation is actually the preferred method of conflict resolution used by Jewish courts in a process called psharah (compromised settlement)^{6 , 7}. The Torah mandates us “to do that which is right and good in the sight of the Lord.”⁸ Rashi comments that this refers to psharah, looking beyond the letter of the law. In fact, the halachah establishes that it is a mitzvah to encourage disputing parties to pursue psharah over the adjudication and application of din (strict law)⁹. Capturing the essence of the benefits of mediation, the Talmud states that only psharah, not din, constitutes the ideal justice of mishpat shalom and mishpat tzedek — judgment of peace and judgment of righteousness. No modern formulation has so elegantly expressed the uniqueness of mediation, in its ability to provide an integrated justice balancing the values of fairness, peacefulness and compassion.¹⁰

From as early as Cain and Abel, we learn that conflict is part of human nature. Chazal have instructed us concerning how to best deal with this nature. We are warned that “An argument is like an overflowing stream; the more it flows, the wider it spreads.”¹¹ The Vilna Gaon explains that attempting to stop an argument by arguing is the same as trying to wash one’s face in one’s filth. The more one washes, the more he sullies himself.¹² During the divorce process, as in any conflict, adversity only breeds adversity. Barring extreme circumstances and individuals, parties should seek an alternative approach, one which foresees an end to the current turmoil. Mediation presents such an opportunity.

Shalom, as mentioned above, should be the prime objective in resolving disputes. The Torah is more concerned with restoring social harmony than with arbitrating legal issues. We are advised by Hillel to be of the students of Aaron, not only to love peace, but to pursue peace.¹³ Even if peace is not easy, even in the midst of disagreement, even if we may not love or like a person as we used to, peace should still be the goal to which to aspire and pursue.

Goals for Our Community

For divorcing couples, our community should encourage an alternative course to the one handed to us by the adversarial system. In the darkness of conflict and family transition, our guiding light should come from the tradition of family values and Jewish ethics.¹⁴ We must realize that Shalom, Mishpat and Tzedek, as goals in mediation and Jewish justice, demonstrate strength, not weakness. This strength produces stronger, wiser and more durable and meaningful resolutions of conflict. Our community should attempt to glorify these goals, not betray them. With the proper guidance of Chazal and with the help of family, friends and trained professionals, there is a way out of the snowballing turmoil of conflict with all of its potentially devastating consequences. Through the process of mediation, divorcing couples can regain respect, dignity and civility in their families, their homes and in their hearts.

Rabbi Adam J. Berner may be reached via email at ajberner@aol.com or through his web site at www.mediationoffices.com.