Howard H. Irving - Children Come First: Mediation, Not Litigation When Marriage Ends

Advance Praise for Children Come First :

Dr. Irving has provided a practical, thoughtfully researched book for parents who are contemplating or going through divorce. It offers an opportunity for parents and their children to go through the transitional phase of divorce in the least destructive way.

Faye Mishna , Ph.D., R.S.W., Professor and Dean, Factor-Inwentash Faculty of Social Work, University of Toronto

This valuable book provides parents, lawyers, judges, mediators, and children with useful resources and Dr. Irvings inimitable wisdom. He has helped thousands of families to put their children first. Anyone who is contemplating a separation, is involved in a custody dispute, or is parenting children post-separation should read this book.

Martha McCarthy , family lawyer, Martha McCarthy & Company

Dr. Irving has created an easy-to-read guide for parents going through family breakup, from helping them to appreciate the dynamics and emotions they are experiencing to providing actual examples of parenting plans and schedules. In my own twenty-five years as a family mediator, I often wished that such a book was available for my clients. I give it my wholehearted recommendation.

Janet Seitlin , Esq., Adjunct Professor, University of Miami Law School

CHILDREN COME FIRST

Mediation, Not Litigation When Marriage Ends

Howard H. Irving, Ph.D.

Copyright Howard H. Irving, 2011

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise (except for brief passages for purposes of review) without the prior permission of Dundurn Press. Permission to photocopy should be requested from Access Copyright.

Project Editor: Michael Carroll

Editor: Allison Hirst

Design: Jennifer Scott

Library and Archives Canada Cataloguing in Publication

Irving, Howard H., 1936-

Children come first : mediation, not litigation when marriage ends / by Howard H. Irving.

Includes bibliographical references and index.

Issued also in electronic format.

ISBN 978-1-55488-795-8

1. Divorce mediation. 2. Custody of children. I. Title.

HQ814.I783 2011 306.89 C2010-902691-8

We acknowledge the support of the Canada Council for the Arts and the Ontario Arts Council for our publishing program. We also acknowledge the financial support of the Government of Canada through the Canada Book Fund and Livres Canada Books , and the Government of Ontario through the Ontario Book Publishers Tax Credit program, and the Ontario Media Development Corporation .

Care has been taken to trace the ownership of copyright material used in this book. The author and the publisher welcome any information enabling them to rectify any references or credits in subsequent editions.

J. Kirk Howard, President

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In memory of my parents, Samuel and Sylvia Irving,

and of my late colleague, Dr. Michael Benjamin

Acknowledgements

The inspiration for this book came from my own personal experience with divorce mediation gained from my family mediation practice and from my teaching and research over many years. To the many families who shared with me their hurt and courage, I am truly grateful. They have taught me so much.

A great deal is owed to my professional colleagues who worked with me at the University of Toronto, Family Mediation Program. To name only a few: Merrill Barber, Guil Arbour, Jennifer Shuber, Virginia Hammara, Heather Swartz, Andrea Litvak, Melanie Kraft, and Ka Tat Tsang.

I am truly grateful to the leaders and writers in the mediation field who have influenced me and helped develop the ideas in this book Isolina Ricci, Joan Kelly, Donald Saposnek, Hugh McIssac, Judith Wallerstein, Mary Duryee, Edward Kruk, Philip Epstein, Judith Ryan, Barbara Landau, and Judge Harvey Brownstone.

Through numerous drafts and edits, invaluable discussions with my associate Merrill Barber and my daughter Jennifer Irving Kochman helped me immeasurably to gain a better perspective and to make this book a reality. I am truly indebted to them.

During the early phases of the development of this book, I received valuable assistance from Don Bastian and Guil Arbour. I also want to thank Michael Carroll and the staff at Dundurn Press for their expert assistance. I am especially grateful to Allison Hirst for her thoughtful advice and invaluable editing of the manuscript.

On a more personal note, I am deeply appreciative for the patience and understanding from my wife, Fahla, and my children, Jonathan, Jennifer, Adam, and Jay, who above all taught me the real value of divorce mediation. I only hope that I continue to be a good student.

Introduction

When a marriage is over, it is not a time for retribution and revenge, but rather the time to make a positive adjustment while providing for and protecting the children.

For three decades I have championed the use of divorce mediation as an alternative to the adversary court system in order to save couples and their children from the bitter legacy of legal wrangling and winner-take-all custody battles. I have mediated more than two thousand cases during that time. If I have learned anything, it is this: if the adversary system takes a bad situation and makes it worse, divorce mediation can take the same situation and make it less bad and often better.

My previous books were academic in approach because divorce mediation was new to family law and the theory behind it needed to be established. In addition, as a university professor, my writing was evidence-based, set up to be reviewed and discussed by other scholars and members of the legal fraternity for accuracy.

With this book, however, I am taking advantage of my research and experience to speak directly to parents who are going through a divorce. While the book is of value to anyone involved in any way with divorce including marriage counsellors, family mediators, and lawyers it is written primarily to help couples themselves, especially those with children.

In this book, I will do my best to

enlighten couples about the nature of the adversary system and the dangers it poses for their children and for themselves.

describe the benefits of divorce mediation, taking readers through the mediation process.

give helpful pointers to children to help them through their parents divorce.