“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.

Mediation encourages parties to speak directly to one another. It allows their voices to resound in the same room. Voices of discord, animosity, and resentment are often inevitable during such sessions, but resonate differently when uninhibited in a safe environment. In optimal scenarios, parties may learn to truly hear one another, and understanding may lead to more ease in light of mutual decisions. In other cases, uninhibited backlash may expose serious problems that were otherwise merely anecdotal asides told by a client to an attorney in confidence.

Especially in urban centers, practitioners encounter a myriad of cultures, and these cultures offer their own perspectives on mental health. Many societies do not believe that such concerns are of medical import, writing off anger and tantrums to character rather than a diagnosable imbalance. Merely raising the concept of mental health may induce skepticism and alienate some clients. Such cultural nuances may pose challenges, but there is no setting better situated for such discourse than that of a mediation session. In instances where emotional disturbance may come to light, creative mediators have the flexibility to involve mental health professionals in the conversation, bringing them into the room to join in comprehensive and therapeutic discussions. Together they can effectively navigate a scenario where tempers are fragile and the consequences of that fragility are of potential concern. If litigation must commence, ideally, this type of mediation should take place before the parties appear at contested hearings where hostility would naturally escalate. Some states already mandate mediation as a prerequisite to a litigated divorce or a custody battle. Others, including New York, are still lagging behind.

There will always be incidents of unforeseeable human actions. There may never be a process that suits every individual. However, some processes are more comprehensive than others. It is time for our system to consider the multitude of concerns that may be addressed and catastrophes that may be averted in these alternative settings.

By Lara Traum and Alla Roytberg

The Law Firm and Mediation Practice of Alla Roytberg, PC

Phone: 212-582-5757