Nearly thirty years ago the New York State Council on Divorce Mediation was born. Almost immediately we began a new vocabulary. Most notable was the substitution of Parenting Plan for the more familiar, Custody and Visitation. The thinking was that the old phrase didn’t seem right. It sounded like the children were in jail and the other parent was coming for a visit. Moreover, and more importantly, the parents we were seeing in mediation wanted to share their parenting more equally and assigning one parent as the custodian just didn’t fit the reality of what was in the room. Over time, the term Parenting Plan has now become more accepted even in the court room jargon as the courts have started to catch up to contemporary family life. Nevertheless, most official documents prepared by the courts still refer to custody and visitation, not Parenting Plan.
Words both shape and reflect cultural norms. There is also a reciprocal relationship between the two much like the chicken/egg concept. Another way to think of it is that the chicken and the egg evolve simultaneously. The jargon of Family and Divorce Mediation has had some influence over the courts and vice versa. This can be most easily seen around issues involving child support.
Since mediation clients are more likely to want to co-parent their children, they often create a parenting plan based upon equal access time. But the Child Support Standards Act demands that one parent be established as Primary Residential Parent in order to establish who pays. Mediators and Collaborative Lawyers and even litigation attorneys do mathematical and word gyrations to meet the needs of the judicial reviewer when the parents want to share equally in the support of their children. To do this sometimes each parent pays their basic child support obligations to the other parent and they net out the difference. This worked nicely for a while until a particular court case put an end to a nice way of doing child support business. Since that time other creative ways are being established to handle the reality on the ground yet pass judicial muster. Sometimes the children are administratively split up with each parent supporting one child and paying support for the other child. In other cases the paying parent takes responsibility for certain basic expenses of the children up to the amount of the calculated CSSA amount. Typically these amounts are only theoretical not actual and the parents just equally share all the costs of the children according to their own unique situation.
The above helps us see that there are two systems interfacing here: The needs of the parents and families on the ground and the needs of the courts to abide by state statutes and the evolving case law. These two systems interact reciprocally and the language evolves as well, each affecting the other. The question for us is, should this be the case?
Must family and divorce mediation be a handmaiden of the courts as one of our notable colleagues has said. Is not mediation, after all, a discipline all unto itself? Those of us who come to mediation through the disciplines of mental health, accounting, education and clergy are more naturally predisposed to see mediation as distinct from the court system and its terms. Even the term ADR (Alternative Dispute Resolution) is a court established term. It has not arisen from the non-court related world. ADR refers to an alternate to litigation as a means of resolving legal cases that enter the court system.
But now, ninety percent of our clients do not come to us via the courts. They come to us
before they enter the court system. It is only at the very final stages of our process when our clients actually enter the court system. This occurs when the divorce action arrives on the Bench. Only at that point the terms Plaintiff / Defendant are used. Until that time our clients or parties are so classified. We call them such because they are not litigants and they are engaged in a bi-lateral process of equals (at least theoretically). Therefore we use different terms for them.
This raises certain considerations. If our clients are not in the court system until the very end, why should our process be influenced by the court system and why should our language be the court’s language? Are we not engaged in a completely different process? Is it not true that the basis of our work is avoiding position bargaining in favor of addressing the interest and concerns of our clients? Do we not work as hard as possible to help our clients move away from an adversarial position and towards two people against a problem? Our mediation process is not the same as that used in the court system. In the opinion of this writer it is actually antithetical. Why do we use court system terms when our process is basically a different process? Moreover, why should we use terms that encourage position taking when our process is designed to avoid position taking?
Why do we use the terms negotiate, child support, primary residential parent, spousal maintenance, enhanced earnings, settlement, and the like all of which denote some kind of contest to be won when what we, as mediators, are really building an agreement to support children along with two household on joint cash flow and live according to some kind of parenting plan? Using the court’s language makes no sense.
Here is an analogy: My son lives in the Czech Republic. His native tongue is English. Now, if he wants to participate in the Czech culture is it not incumbent upon him to learn and use the Czech language? Does not his intentionally learned use of the Czech language facilitate his living in Prague even if he is not fluent in that language? Does not the use of his English language in Prague limit his ability to relate and perhaps confuse his relationships and erode his legitimacy?
It is the contention of this writer that we need to emphasize the distinction between the mediation process and the court system process that is heavily influenced by litigation and litigation language. We should be changing many of our words not just Parenting Plan.
Now you may be thinking, But we have to put these terms into our agreements or judges will not accept them! Well, yes, I suppose we do as long as we are forced to use the terms used in the statutes that govern divorce. (Someday that could change) But, we are not using the court system to resolve the issue! Yes, as long as the statutes are written as they are and judges are given the duty to approve our agreements, we will have to use terms that are familiar and legitimate to them. But, if citizens want to use another voluntary system to come to terms with their marital dissolution they should use the terms associated with that other system. Then, AT THE CONCLUSION OF THE PROCESS we can translate the agreement arrived at in one universe into a legally binding legal agreement that uses a different language.
Let us stop using the court’s terms DURING our mediations. We need to help figure out what happens to the family income stream and THEN put the labels of child support and spousal maintenance on. If we want to avoid position taking we should never hear the terms child support or spousal maintenance and the like in our sessions until the agreement is done. We should never hear these terms talked about at our conferences and, unlikely as it might seem, these terms should not be in the vocabulary of our clients.
The following terms and many others should go the same way as child support and spousal maintenance in lieu of cash flow. We need to be more intentional to have our language be consistent with our practice. Here are a few:
Divorce is Marital Dissolution
Marital / Non-marital Property is Joint.Assets and Liabilities
Enhanced Earnings is Cash Flow
Negotiating and Agreement is Building an Agreement
The Husband / The Wife is Party A / Party B (no gender)
The Father / The Mother is A Parent / The Other Parent
Add more of your own
This is NOT about being politically correct. It is about being fundamentally correct. Our language is for a distinctly different process, one that does not position our clients (or us) as adversaries. Perhaps I will never see this day when our language is our own, but maybe some of our youngest practitioners will. Words are powerful and they do impact culture. Let’s talk the walk.