Divorce is ranked second only to the death of a spouse as the most stressful life event.[i] A divorced woman had this response to her recently widowed friend’s retort that the divorced woman did not understand her friend’s grief because her ex-husband was still alive:
For all intent and purposes, [he] was dead to me. Since the divorce, I’ve had no contact with him and seldom see him. The two times I did, he looked at me with indifferent eyes. There was no warmth, no sense of recognition that we’d spent 32 years together (most of them happy), and no desire to share cherished memories…. The last time I fleetingly saw him, a small pang of separation and loss hit me all over again. In addition, when my husband left, so did his family. This felt like a double loss. [ii]
Divorce is a traumatic loss of what is for most people the most intimate relationship of their life. In so many ways, it is like the death of a spouse. In fact, many would argue it is actually worse. Divorce is not dignified like death. There are no grieving ceremonies. When a spouse dies, all of the assets are usually transferred to the surviving spouse as is custody of the children, while in a divorce, the distribution of assets and division of custody is divided. Finally, unlike a death, the divorce causes multiple losses because of the loss of mutual friends and the other spouse’s family. The worst part is that most people do not expect the grieving process to take very long.[iii] However, it is widely recognized that parties in divorce go through the same five steps of grieving as someone who is dying or someone who has lost someone to death.[iv]
The idea of emotional stages for divorce originates from the original research done by Elisabeth Kubler-Ross, M.D. on the emotional stages that terminally ill patients go through when dealing with their impending death.[v] In addition, her book, On Death and Dying, also brings out another striking parallel between the two areas of death and divorce. This is the parallel of the systematic failures of the traditional medical field’s approach to death and the traditional family court‘s approach to divorce. Both systems fail to respect their clients for who they are, human beings caught in the middle of a devastating life changing event.
To illustrate the failure of the medical system, Kubler-Ross describes the scene of a terminally ill patient’s admittance to the hospital:
He will be surrounded by busy nurses, orderlies, interns, residents….he will overhear opinions of his conditions and discussions and questions to members of the family. He slowly but surely is beginning to be treated like a thing. He is no longer a person. Decisions are made often without his opinion.[vi]
She portrays a system that ignores the humanity of its patients and the trauma of what is occurring to them. The traditional family law court system in our country also ignores the humanity of people and the trauma that is occurring to them. Lawyers negotiate and advocate for the parties and judges, who know relatively little about them, make the final decision regarding what will happen to their children and personal finances. The family courts were set up at a time when there were relatively few divorces, without consideration of the interests and needs of the couples who would appear before them and their children. The family courts were set up in the same adversarial model that the civil and criminal systems were.[vii] This was done with complete disregard of the fact that parties and families in the middle of divorce are often experiencing severe trauma and the adversarial system only serves to prolong and exacerbate this.
By ignoring the trauma of families, the court system spits families out of the system in an even worse state than when they entered. The even greater travesty than what Kubler-Ross described happening to dying patients in hospitals in the late 1960s, is that these broken people are then sent out to parent, spreading this harm onto another generation.
The medical field responded to Kubler-Ross’s research by the growing use of trained hospice care doctors and nurses who enable patients to stay at home while they are dying.[viii] Many family courts across the country have also recognized how ill equipped they are to meet their clients’ needs. The courts’ answer to this problem has been to offer at least some type of mediation services, whether mandatory or discretionary.[ix] In addition, informed consumers have taken the issue into their own hands by seeking out private mediators for their cases.[x]
Unlike the traditional family law court system, a mediator has the opportunity to work with clients where they are at in the emotional divorce process and tailor sessions to match the stage in which they find their clients. To do this, mediators, like the doctors in hospice care, must understand the emotional stages their clients are moving through.
II. The Stages of Grief in Divorce
Kubler-Ross developed the idea that there are five stages of grief: denial, anger, bargaining, depression and acceptance.[xi] Kubler-Ross clarified that not everyone goes through all stages or do they go through them necessarily in order.[xii] In an ideal world, clients would not enter the divorce mediator’s office until after they had neatly landed in the acceptance stage of the grieving process. They would each have found a peaceful, serene place of acceptance of their new living situation and would be eager to collaborate on how to map out their co-parenting future, how to divide the assets, and how to provide for support for themselves and their children.
Rarely, does this couple walk into the mediator’s office. Instead, the mediator will find two people sitting before them, who are at very different emotional places, with one or even both of them far from a place of acceptance or collaboration. Therefore to be effective, mediators must learn how to deal with clients as they find them, in whatever emotional state they occupy. If approached correctly, mediation can be beneficial to parties no matter what stage they are in. However, in order to approach mediation correctly, a mediator must gain an understanding of (1) the stages of divorce, (2) how the client’s frame of mind in each stage will affect their ability to mediate, and (3) what mediation can offer a person in each particular stage and how to capitalize on that.
A. Denial Stage
In denial, the first stage, the person is in shock.[xiii] Just as when someone is physically injured and the body goes into shock to protect the person from being overwhelmed with what has happened to them, the same protection mechanism goes into effect when a person has a traumatic emotional loss. Their mind denies what is happening to them. The denial is used as buffer, giving the party time to recollect their thoughts and “with time, mobilize other less radical defenses”[xiv]
In the denial stage, the person who did not chose the divorce, the “non-initiator”, feels helpless in the divorce process as they find themselves and their children in a place they never agreed to be. This feeling of helplessness often causes them to take one of two extreme paths. They will either (1) let the initiator make all the decisions regarding the divorce and separation (perhaps, hoping that by being agreeable the initiator might reconsider), or (2) they try to take complete control of all of the decisions regarding the separation. [xv]
When court action is filed against someone in the denial stage, sometimes drastic consequences can occur. First, in the extreme case, they may choose not to respond at all to court notices. This can translate into contempt actions or orders being entered without the non-initiator being given an opportunity to represent themselves. If they do attend a court proceeding, they may feel so hopeless that they agree to whatever the other side wants. In the alternative, they may take a very unreasonable position. For example, they may argue that the initiator should not be allowed any temporary visitation or custody time at all with the children. This sets up the parents for a custody war and places the children in the middle.
In mediation, the mediator must accept that a client in this stage is in complete denial that the divorce is actually going to happen. During the session, the client may keep talking about when the couple gets back together. For the mediator, it can be difficult to understand how this is possible, especially when the initiator is nothing but clear that the divorce is going to happen and that they have no interest in reconciling. The non-initiator’s denial stage is often countered by the initiator’s desire to finalize the divorce immediately. The combination of these two personalities in front of the mediator can be frustrating. There is pressure from one side to wrap up an agreement, while at the same time, the other side refuses to even discuss the possibility of them living apart.
The difficult reality of clients presenting in this fact pattern is that an extra hurdle has been placed in front of the mediator. They must deal with the denial before they can even start dealing with resolving the substantive issues. They must first have the parties come to a meeting of the minds of what they are resolving.
This situation is really no different than if two business partners came to a mediation session and one was asking the mediator to help them come to an agreement on how to run the business and the other was asking the mediator to help them come to an agreement on how to close the business.
The mediator may wonder what they can offer at this stage, when the parties cannot even agree upon what problem they want resolved. First, the mediator can offer some calmness and stability to the situation by helping the parties to focus on immediate issues that will allow them to practically function during the separation. A party in denial may not be able to face the idea of division of assets, which confirms the reality of the divorce. However, they may be able to discuss the reality of needing money until “this nonsense about divorce” can be straightened out, or maybe they can discuss when the other parent is going to see the children until they return home. Discussion of these temporary issues does not force the party in denial to face the inevitability of the divorce before they are ready. However, it allows the other side to see some movement toward resolution.
Second, the mediator can provide assistance in the way of coaching to both the parties in caucus sessions. With the impatient initiator who wants to get on with their life, the mediator can ask them about their emotional process in arriving at the decision to divorce. Often, the initiator went through similar stages of grieving the marriage while the parties were still together. Through skillful questioning, the mediator may be able to get the party to recognize that deciding to divorce was a journey and help them to understand that the other side is simply behind them on this journey. The mediator can also have the initiator discuss their options to force the other side through the divorce in court. Most of the time, these options take weeks if not months. If the initiator can see that it might be worthwhile to wait for another session or two, they may be willing to have some patience. With the non-initiator, who is so hopeless that they are giving in on every issue, the mediator can take another tact. The mediator can assure them that even though the mediator understands that they want the mediation process to be over, they will also want to be happy with the decisions they are making five, or even ten years from now. The mediator can remind them that they can have some time to think it over or to review the proposal with counsel or a financial adviser, so they truly understand how their decisions will affect their life going forward.
B. Anger Stage
In the anger stage, the denial regarding what is happening turns instead to anger over what is happening. Anger expressed in this stage does not have to be logical or valid.[xvi] The traditional court process gives the person in the anger stage a barrage of weapons to use: motions, discovery, contempt petitions, to name a few. The other spouse has no choice but to respond to these actions. Two things happen in this scenario 1) the marital estate is quickly spent down on attorney’s fees and 2) all of the court battling gets the parties perpetually stuck in the anger phase of the grief process. [xvii]
When one of the parties is in the anger stage during mediation, their negotiation style is fueled by the desire to cause the other side pain or to seek revenge. Just like in the denial stage, the mediators can find themselves wondering if the case is appropriate for mediation. Why is this person paying to attend a mediation session, when they seem so committed to only causing more conflict? This is the grief talking. Intellectually the person may truly desire to resolve the case out of court, but during the heat of the session, the anger and hurt they feel over the loss of the marriage takes over.
The trick as the mediator is to keep the angry party channeled into the intellectual thought process instead of letting the anger take hold of them and ruin the session. Simple techniques can help with this. First, when the mediator sees that the anger level rises when one party is talking directly to the other, the mediator can ask the party to speak through them, instead of looking directly at the other party. This is a simple, but amazingly effective technique. Couples develop the tiniest things that can set each other off, whether it is an expression, a look, or a hand gesture. Therefore, using the mediator as the conduit when talking can alleviate the tension and allow the parties to think more clearly.
Second, the mediator can be used to present options for settlement. If the mediator sees that one party is so stuck in the anger stage that they are going to say no to whatever the other party suggests, no matter how favorable it is to them, the mediator can aid the process by making it appear as if they were the source for a settlement option. A party in the anger stage will find it much easier to say yes to a settlement suggestion given by the mediator than “that evil person who has ruined their life”.
Finally, if the mediation session is so filled with anger that there can be no productivity while the parties are in the same room, the mediator can conduct the session completely through caucuses. This technique is usually a last resort, however it can be very effective with some couples. The couple may be very committed to mediation, but simply cannot release the anger enough to effectively negotiate when the other party is in the room.
C. Depression Stage
The third stage, depression, is filled with sadness and hopelessness.[xviii] Clients seem to check out from their life and their case. They are not in a position to help themselves. In the traditional litigation setting, they often substitute the judgment of the lawyer for their own. This allows the client to check out and the lawyer to take over. A colleague’s client, who was very depressed during much of her divorce proceedings, said that when she finally awoke from “the fog” she wanted to know what was going on and she hoped that it was good for her. Fortunately for her, she had a very skilled and ethical lawyer who had kept her best interests in mind, even when she could not, however, this is not always the case.
Unlike in litigation, a depressed party cannot check out in typical party only divorce mediation, as there is not anyone to take over negotiating for them. This leaves the mediator in a difficult situation. A case with an extremely depressed party may settle easily, however, it is not because both sides negotiated a settlement that meets both of their needs, but rather because one side just gives up and gives in. A mediator may find that a person who is in a prolonged deep depression may simply be unfit to mediate. However, if a person is working through the depression stage of grief, the mediator may be able to work with the client where they are at until they move through it and are able to negotiate for themselves again.
First, the mediator may want to suggest to the client during caucus that they seek some professional support, if they are not doing so already. Time is on the mediator’s side for in the divorce mediation arena, a settlement is usually mediated over several weeks or months. Therefore, a client is not forced to come to a settlement while they are in the middle of depression. There is hope that the party will be able to get help and come out of the depression during the course of mediation process.
Second, the mediator can work with the client in caucus to begin looking forward. Depression often comes out of fear of the unknown and planning can help relieve it.[xix] If the mediator can help to address these fears by meeting the interests that the party has such as staying in the house, having enough money for retirement, etc., they may be able to move the party forward and out of the state of inertia the depression is causing.
Finally, if the mediator believes that the attorneys in the case are skilled at representing their clients’ best interests, the mediator may suggest that the parties have their attorneys present at mediation sessions. This way, the attorney can help the party negotiate and draw out their interests in the session.
D. Bargaining Stage
In the bargaining stage, the non-initiator is actively trying to prevent the divorce from taking place.[xx] The non-initiator will promise almost anything to reconcile, whether it be quitting drinking, working less, spending more time with the children, etc. This bargaining also seeps into the court process. The non-initiator may think if they just go along with what the initiator wants in the divorce, they may decide they want to come back.
In mediation, clients in the bargaining phase can at first blush make the mediators job look easy. They can be willing to agree to almost anything for the sake of appearing agreeable in hopes of reconciling. The problem is that often agreements made in this stage are not viable. When the non-initiator realizes their bargaining will not get the parties back together, they will start looking out for their best interests and will rethink all of those agreements. Therefore, when the mediator spots behavior that indicates that the non-initiator is in the bargaining stage, they need to work through the practicality of agreements with questions. For example: “What will you do for retirement if you give her your entire 401(k)?”, or “How are you going to be able to pick up the kids everyday from soccer at 5:00 p.m. if you do not get off work until 6:00 p.m.?” In addition, the mediator needs to keep suggesting that the proposed agreement’s terms are gone over with the parties’ lawyers in between sessions. A good attorney will also do reality checking with them about the practicalities of their proposals.
E. Acceptance Stage
The acceptance stage is when the parties are at peace with the fact they are divorcing.[xxi] The parties at this stage are the easiest for mediators to work with. These couples have often been separated for a considerable amount of time. They are able to look at issues with a clearer perspective, focusing on their future interests and goals. Parties at this stage are a mediator’s dream and require no special handling due to the grieving process. For all intents and purposes they have finished the major emotional undulations of divorce and have adjusted to the idea of a new life after the marriage.
In conclusion, the trauma divorcing families go through is real and needs to be addressed as they go through the process. Just as hospice care was the solution to the healthcare system’s failings at dealing with the death’s grieving process, mediation is the solution to the family court system’s failings at dealing with the grieving process of divorce. Mediation can be beneficial to parties no matter what stage of the grief process they occupy. All the mediator needs to do is take in the human being in front of them in all of their fragility and heartache, meet them where they are at, and begin the process of empowering them to find their way out.
[i] Holmes, Thomas and Rahe, Richard, “Social Readjustment Rating Scale”, Journal of Psychosomatic Research, vol. II, p. 214, (1967). [ii] “Divorce vs. Death”, Divorced at 50, Or How I Lost My Best Friend of 32 Years and Survived Blog. Post January 2, 2007, http://divorcedat50.blogspot.com/ search?updated-max=2007-03-11T19:57:00-05:00&max-results=25. [iii] Id. at Post January 2,2007. [iv] Splinter, John , The Complete Divorce Recovery Handbook, p. 20-30, (Zondervan Publishing House Michigan, 1992). [v] Kubler-Ross, Elisabeth, On Death and Dying, p. 51-146, (Scribner New York, 1969). [vi] Id. at 22 . [vii] Basch, Norma, Framing American Divorce: From the Revolutionary Generations to the Victorians, p. 5, 6, (University of California Press Berkley, 1999). [viii] Miller, S. C., Lima, J., Gozalo, P. L., & Mor, V., “The Growth of Hospice Care in U.S. Nursing Homes”, Journal of the American Geriatrics Society, Vol. 58(8), p. 1481-1488, (2010). [ix] Ricci, Isolina, “Court-Based Mandatory Mediation”, Divorce and Family Mediation, p. 399, (The Guilford Press New York, 2004). [x] Emery, R.E., Renegotiating Family Relationships: Divorce, Child Custody and Mediation, p. 2-19, (Guilford Press NY, 1994). [xi] Kubler-Ross at 51-146. [xii] Kubler-Ross, Elisabeth, and Kessler, David, On Grief and Grieving, p. 7, (Scribner NY, 2005). [xiii] Kubler-Ross at 51 . [xiv] Kubler-Ross at 52. [xv] Neumann, Diane, The Psychological Stages of Divorce, http://divorcemed.com/Articles/ArticlesByDiane/The%20Pssychological%20Stages%20of%20Divorce.htm. 1/16/2012. [xvi] Kubler-Ross and Kessler at 11. [xvii] Frank, Mari, “Choosing an Effective Resolution Process to Transform Grief”, The Mediation Divorce Guide, p. 8, http://divorcemagazine.com. [xviii] Kubler-Ross at 51-62. [xix] Temes, Roberta, Solace: Finding Your Way Through Grief and Learning to Live Again, p. 44, (AMACOM NY, 2009). [xx] Kubler-Ross at 93-94. [xxi] Kubler-Ross at 123-146.