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NJ Family Legal Blog Pertinent Information As It Relates To New Jersey Family Laws

IS MEDIATION REALLY THE BEST WAY TO ADDRESS “GET” ABUSE?

Posted in Divorce, Mediation/Arbitration

Imagine you are drowning.  You don’t have a life jacket.  Your swimming companion is pushing you further and further under.  What do you do?  Do you stop and try to reason with your companion?  Do you fight back and run for your life?  Do you just lie down and die?

While the analogy is morbid, yes, it is an equation (on a less life-threatening scale) that those embroiled in “Get” litigation face every day.  Do they fight back in a protracted Court battle?  Do they just give up the farm and all its animals?  Or do they attempt to reason with their soon to be ex-spouse?

Anyone who follows my blog, knows that my interest in the Get crisis was fueled several months ago, when the story of Gital Dodelson, a 25 year old civil divorcee whose husband refused to give her a Get, came to light.

It is no surprise, therefore, that a recent article in the Huffington Post further caught my eye.   It was entitled “5 Ways That Divorce Mediation Can Help Resolve the ‘Get Crisis’” by Morghan Leia Richardson. The author’s proposition is that mediation may assist in resolving the get crisis in the following ways:

1.         It avoids Court drama, which Ms. Richardson feels, fuels the fire and lends to angry/hurt feelings on the part of the recalcitrant husband.

2.         It allows people to opt for creative solutions, which may in turn lessen the urge to withhold the get.

3.         It levels the playing field by precluding a husband from using custody as leverage in the giving of a get.

4.         It avoids public shame for the recalcitrant husband.

5.         It decreases “Double Trouble” by not adding insult – a court battle – to injury – the very request for divorce.

While aspirational, Ms. Richardson’s goals may not work in every “get” resolution case.  For example, in the case of Gital Dodelson, the civil divorce has long been resolved, yet her husband continues to withhold the get.

Further, it is my personal belief that in order to seek a solution to the problem, we need to understand WHY it is happening.

I see many similarities between the agunot – chained women – and a woman dealing with a narcissistic husband, which I just blogged about last week at the close of my Seven Deadly Sins series.  In both scenarios, one spouse is the unwitting victim of the other spouse, regardless of what they may do and what they may agree to.

Which begs the question:  If one spouse is victimizing the other, wouldn’t this spill over to the mediation process where the potential for strong arming is very real and indeed, far too common?  Would the victimized spouse lose their voice?  This also begs the question as to why someone should be forced to concede anything just to obtain a Get.

The proposition that mediation can address either of these scenarios, therefore, may be suspect.  Rather, prevention is key (and by prevention, I don’t mean not marrying the guy in the first place, although that would be nice…).

In both the case of the agunah and narcissists (perhaps sometimes one in the same), family court systems may be better served focusing on the following:

1.         Education for lawyers, judges, court staff and experts on the issues;

2.         Parsing through rhetoric to uncover that one spouse is leveraging custody or financial issues.  In those cases, the parties may benefit from the appointment of custody evaluators, guardians ad litem and other experts.  This may disempower the offending spouse by taking the decisions out of their hands;

3.         Penalties for using children as a bargaining chip in a divorce;

4.         Advance protection for the victimized spouse, including the normalization of documents such as the Halachic Prenup or regular prenuptial agreements;

5.         In the event of a divorce, getting your documents together, building a strong case and creating a strong legal teams.

To be clear, I am not advocating for the parties to discount mediation when there is an issue of narcissism or get abuse. I am simply proposing that perhaps it should be undertaken in the context of the above steps. Perhaps that way, some progress can be made for these aggreived spouses in family court.

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Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.