On Undiagnosed Mental Illness and Mediation

“The best way out is always through.”

– Robert Frost

What is mental illness? What is mental instability? Scientists and mental health professionals have grappled with questions concerning the human mind for centuries. From artfully crafted screening questions to wires transferring electrodes to images, we live in a society that tries to unravel why some people act in unfathomable ways. Sometimes we feel we are closer to an answer. But the inevitable anomaly continually sets us back.

In the setting of divorce, we are concerned with identifying an environment that offers an optimal space for a child to flourish. In a litigated process, our system attempts to investigate these environments through forensic evaluations, court ordered investigations into home environments of the parents, supervised visits and other compartmentalized vehicles. One person visits the home of a parent who assumes a requisite, cavalier smile for an afternoon. Another person explores the home of a parent who is absent, balancing two jobs and in no position to tidy. A third person interviews a young child who enthusiastically chatters about the parent who provides more sweets and fewer boundaries. Each of these individuals files a report with the court. Attorneys, equipped only with brief anecdotes told in confidence by their clients and often skewed summaries of opposing party’s positions, advocate for their clients to the best of their abilities. A judge evaluates to the best of his or her ability based on what is presented in court. No one thinks about the gaps that will never be filled.

There is little opportunity in a courtroom to observe the engagement between divorcing spouses without the filter of their attorneys, coaching them on what words to use and how to temporarily temper their habits by polishing the virtual or real image they present to the world at large. There is little opportunity to emote, to communicate freely, to problem-solve constructively and collectively. And there is certainly little opportunity to flag whether an individual is concerned with love of a child, or an unsavory obsession with simply winning a game.

It is true that mediation may not be a feasible process for every couple. It is true that a minimal amount of willingness on both sides is imperative to participating effectively. However, mediation is still one of the few forms of dispute resolution in which certain critical human elements can be brought to light. Click here to read more

Do Court Orders Protect from Violence or Can They Potentially Increase its Threat?

“Litigation: A machine which you go into as a pig and come out of as a sausage.”
– Ambrose Bierce

Do any of you see disturbing patterns in recent news? Patterns where people who, as it turns out later, have mental health issues, end up snapping and committing murder? These patterns are not limited to our country and unfortunately, they are becoming more and more frequent, especially in the area of family disputes.

In September 2013, a man kidnapped his small children in Tel Aviv, Israel, and ended up throwing them off an 11-story building, then taking his own life. That man, whose name was Eli Gur was estranged from his wife. After being found “unfit for duty” and released from the police force, Gur lost his mother and was living with his brother in her house. There was a restraining order in place and he could only visit his children under a social worker’s supervision. However, the court order did not prevent him from storming into his wife’s home, choking her, snatching the children and taking off. Click here to read more.

New York Becomes a "No Fault" Divorce State

“Common sense is the knack of seeing things as they are,
and doing things as they ought to be done.” – C.E. Stowe

Finally, after decades of resistance, New York decided to join the other 49 states and offer a “no-fault” divorce option to those couples who want to simply part ways without having to accuse each other of some type of wrongdoing. It took many, many years to get to this point. Every time there would be a proposed bill to add the “no fault” provision to the law it would be defeated because of the resistance from different types of concerned groups and lobbying efforts. Finally this year, it did pass.

What does “no fault” mean? Before, in order to divorce in New York State you needed to come up with a “fault” ground, which means that one spouse had to accuse the other of something. If you had a couple where both sides were in agreement that they wanted to divorce right away, there was no option such as “irreconcilable differences”, which has existed for decades in other states. The only way couples in New York could divorce without being forced to accuse one another was to execute a separation agreement and then wait a year. They could then assert “living pursuant to the terms of the separation agreement for a year” as a ground for divorce. The new “No Fault” ground allows parties to submit divorce documents to court right away without having to wait a year or having one side accept the blame for wrongdoing.

Why the resistance to “no fault”? Historically, some religious groups resisted it because of their concern that if getting divorced became “too easy” people would not try to make an effort to stay together.

The other groups that were against it were those having to do with domestic violence. These groups advocated for victims of domestic violence, both men and women, though statistically women were more often the victims. The primary concern was that if the husbands had the opportunity to get out of a wrongdoing reason for divorce, they would be able to file very quickly, and then use the spouse’s fear to cheat them out of a claim of financial support or equitable distribution of marital assets. For decades there was resistance based on that, but in recent years, some of the members of the organizations that fight domestic violence, came to realize that the abusers tended to be pretty successful in manipulating the court systems even with the wrongdoing grounds, so that wasn’t really helping the victims.

Thus, finally, as of October 12, 2010 you can get a “No Fault” divorce in New York if, according to either party, the marriage has broken down irretrievably and has been broken down irretrievably for at least six months. This doesn’t mean that the couple has to be actually separated for the six months; they just have to state that the marriage was completely broken down for the past 6 months. Now one side can unilaterally allege that the marriage is irretrievably broken and submit a claim for divorce on the basis of this new ground.

This legislative breakthrough did not come without strings attached, however, and there are many strings. The new law only really helps remove the grounds as an issue in a contested divorce, but couples still have to resolve all of the other issues having to do with the children, with child support, with spousal maintenance, and with division of property. Unless all of these are resolved, they cannot get the divorce. If they cannot reach an agreement on all matters, the issues of custody, child support, spousal support and division of property will still go through the court process, but at least the issue of grounds will not.

All families are "Broken" and then "Blended"

"Marriage customs bring together two people from different lineages and place them under a common roof. By definition, marriage is a joining of unlike elements. Even when the bond is strong, a seam both connects and divides husband, wife and the web of in-laws they bring to the table. A couple’s biological offspring really are a blend, but the rest of the family is patched together."  - Ellen Lupton, "In Praise of the Broken Home", New York Times, August 2, 2010

     Imagine, that in addition to joining the "unlike elements" under a common roof and then blending the family through the birth of several children, this blended family now emigrates to the United States from a country like India, Uzbekistan or Japan and settles in the County of Queens, City and State of New York.

     To complicate matters, the older husband has a hard time mastering the language and his younger wife is able to go to school, get a job and succeed financially.  "Over there" he was an important man, who provided for his family, but "over here" life is different.  As his wife works and becomes more independent, he begins to feel worthless, while his children become Americanized and "disrespectful."  Sounds familiar?

     Unfortunately, such is the plight of many families with strong traditional ties who "uproot" themselves and move to a new country.  The rift between parents and children and husbands and wives widens and the extended family members seem unable to comprehend that sometimes adjustments must be made. "In the old country people did not divorce, the husband managed the money and the wife managed the household.  The children knew 'their place' ".

     One can only imagine the complexity of emotional and cultural issues that such a family must experience if the couple faces a divorce or a separation.   However, divorces happen more and more often and have become a regular fact of life in such courts as Queens County Supreme Court in New York City.  Queens County is the most multi-cultural county in New York State. It brings together and "blends" hundreds of nationalities into a flavorful stew of small neighborhoods, which usually peacefully interact with each other. However, when the family dispute overtakes them, many members of the extended family find fault with the national original of the other party: " I told him not to marry a girl from ____ city, they don't make good wives".. While everyone is looking for a unique reason why a divorce is inevitable, in reality it is often the unfortunate consequence of too much "breaking" and not enough "blending" in a family of recent immigrants.

      In any event, it is imperative to find a culturally sensitive solution for the separating couple and their family, - the type of a solution that would work as they struggle to preserve their national identity and, at the same time, adjust to their new American way of life in a positive way.

CHOICE OF PROCESS FOR VICTIMS OF DOMESTIC VIOLENCE

"Force is all-conquering, but its victories are short-lived" - Abraham Lincoln

For decades the well established rule has been that we, as family and divorce mediators, must screen out cases which involve a history of domestic violence (DV) and refer victims to DV counselors. Most of us still adhere to the rule that cases which involve domestic violence should not be mediated at all. However, as noted by Dee DePorto, Senior Clinician of Psychological Counseling Center at SUNY New Paltz, when we prevent the victim from having a choice to participate in a mediation we, in essence, contribute to the pattern of disempowerment, with which she is all too familiar already.

Many victims of domestic violence fear repercussions from an abuser if they go to court, obtain an Order of Protection or contact the police. The abuser may actually effectively manipulate the court system and use it as a tool to further threaten victim - i.e. accuse her of mental illness, threaten to take away the children, etc.

Fo the last several years, the Domestic Violence and Mediation Safety Project of the Mediation Center of Dutchess County, Inc. has been conducting a bold experiment in empowering victims of domestic violence by allowing them to choose mediation, provided a detailed safety plan is in place. An experienced Domestic Violence consultant works with the Mediator throughout the process, creates a safety plan to be used during mediation sessions and focuses the mediator's attention on specific red flags which may come up during the sessions. If successful, this type of an environment can actually empower the victim to advocate for herself and the parties to make constructive decisions in mediation.