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Divorce without Destruction

Barbara Bensoussan

Mediation gives divorcing couples a way to keep fighting in check, save thousands in legal fees, and obtain fair division of assets and responsibilities.

Wednesday, June 22, 2016


The mediator brings him back to earth by asking, How do you expect to take care of them?

Splitting a household during a divorce is a painful, complex process fraught with anxiety, fear, and anger. Mediation offers couples a way to keep fighting in check, save tens of thousands in legal fees, and obtain fair division of assets and responsibilities.

When Ron and his wife Alona began the miserable process of ending their marriage, Ron felt only anger and bitterness. But once separated from his wife, and after coming to terms with the inevitable, both he and his wife cooled down considerably. They decided that even if they couldn’t make their marriage work, they ought to do their best to make their divorce work. They had a compelling reason to do so: four children under age 12. 

“I realized, she needs to be a great mom, and I need to be a great dad,” Ron says. “We needed a framework through which we could put all the issues on the table, and lay out all the topics and time frames for parenting our children.” 

Frum divorces typically involve not only children, but extended family, money, religious issues, and our complex lifestyle. To deal with it all, several friends and a local rabbi suggested that Ron and Alona enlist the help of a divorce mediator. Mediation — a way of working out the details of splitting up a household before legalizing a divorce — cuts down considerably on legal fees. (As opposed to the average $30,000 price tag for a divorce, the average mediation costs $6,000.) Even better, mediation offers a goal-oriented, noncombative means to work out a divorce settlement. With both fees and tempers kept to reasonable levels, it’s not surprising that mediation has become a popular option in the unfortunate event a couple can no longer stay married.

Trouble in Court

Rabbi Menachem Rosenfeld, a mediator and lawyer in Fair Lawn, New Jersey, laments that divorcing couples often abandon their good middos and dignity when thrown into the fray of divorce battles: “Why does our society expect a couple to marry as bnei Torah, and yet frequently allow them to divorce as battle-hardened mercenaries?” he has written, adding that escalating the rancor can on occasion tempt parties to use the get as a bargaining chip. 

Unfortunately, even those who go into divorce proceedings with honorable intentions feel compelled to fight back if the other side comes in with all guns drawn. “The person who battles more ferociously determines the divorce environment,” says psychologist Rabbi Benzion Twerski. “If the other side is coming at you with Sherman tanks, you have no choice but to fight back.” 

Hadassah Fidler, a Brit now living in Eretz Yisrael, actually left her career as a lawyer to work in mediation because she felt mediation offered a better alternative: “In court, you’re not necessarily looking for the best way to go forward,” she says. “You’re just looking to win.” 

Photo: Shutterstock

By nature, civil courts pit the litigants against each other as adversaries. Adam Berner, a divorce lawyer in Hackensack and Manhattan who is also a mediator, wrote in Jewish Action, “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’?… an adversarial nature is inherent to the process of divorce.” 

According to Berner, the divorce process “disempowers” both parties, meaning that lawyers take over negotiation for their clients, who may then find themselves represented in ways they never intended. Seeking the best deal, they bargain from an extreme position the same way a seller at the souk sets his first price way above an item’s true value. Fellow mediator Rabbi Rosenfeld adds: “Attorneys will fight to get clients what they say they want. But sometimes what they want isn’t good for them! A father might ask for custody of his children, but he works full-time and isn’t really able to care for them. I’ve seen people go to court and file for a restraining order against the other spouse. The claim of past or threatened violence often isn’t even true — it’s just a bargaining ploy to get more money.”

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