During the last decade, divorce mediation has emerged as an increasingly popular way for couples to avoid the high emotional and financial cost of litigated divorces. Rather than pay lawyers to negotiate the terms of their divorce, couples sit down with a neutral intermediary (their mediator) to discuss and agree on a fair and reasonable settlement.
In mediation, spouses maintain control of their divorce rather than turn it over to lawyers and judges. They also avoid the adversarial nature of our litigation system. Instead of fighting each other to "win" all they can, they cooperate to achieve a result they both can live with.
If you turn your divorce over to lawyers, you are starting a WAR! And a very expensive one. The rules of our judicial system control the way your attorney works with you. Your attorney is required to be "adversarial," that is, aggressive and combative. The adversary system and the way lawyers work in it are a major cause of conflict, trouble and the high cost of divorce.
In spite of the way things seem, lawyers are not always villains and not always to blame for stirring up conflict. But even for lawyers who mean well, the tools they use and the system they work within will almost always increase conflict. And increased conflict always costs more money and rarely gets better results for either spouse. This is the irony of the entire legal process.
Professional standards of practice dictate how a lawyer will conduct your case. For example, professional ethics forbid your lawyer to communicate directly with your spouse – the adversary. It is expected, instead, that your spouse will be represented by an attorney, and your lawyer can only communicate through your spouse's lawyer. This means that your attorney can't even "talk" to your spouse, or explain to your spouse how you see things, or even help you talk to each other. It means that your attorney will always have a one-sided view of your case and can never achieve an understanding any greater than your own.
If you retain a lawyer, your spouse will definitely take your case into the contested cycle of the legal system because that is the only thing he/she can do. As a matter of fact, he/she has to. There are no other formal tools a lawyer can use.
If either spouse retains an attorney, that attorney will invariably write formal letters, file legal papers, make motions, prepare interrogatories and do discovery. These actions will surely cause the other spouse to get an attorney too. Now, instead of two people who don't communicate well, you have four people who don't communicate well. The case is now contested and the cost and conflict level will go way up. Attorneys tend to ask for much more than they expect to get; it's considered "good" practice. Your spouse's attorney will oppose your lawyer's exaggerated demands by offering less than you are willing to give and by attacking you and your case at the weakest points.
Now you're off to an aggressive, confrontational start and soon you'll have a hotly contested case, lots of cost, and a couple of very upset spouses. It happens almost every time.
Statistics clearly show that one of the primary reasons couples choose attorneys to handle their divorce is because they each "want to WIN all they can". While this may sound like good, logical, decision-making for your future, the reality is that most divorce attorneys are good at their jobs. And it usually doesn't matter what the specific circumstances of the divorce are. It is an extremely rare case when one spouse wins dramatically and the other spouse loses substantially. It simply doesn't happen. Issues are usually settled (compromised) in some kind of illogical, often mysterious method, where one attorney "gives" on one issue and "gets" on another. That's the basis of our legal system. The irony of the entire legal divorce process is that you're on the sidelines having very little control over the outcome. Yet, you're the one paying the money. Statistics in Baltimore County indicate that a contested divorce will cost you a minimum of $10,000 each…and many cases double or triple that…depending on the level of conflict. And for what? Emotional satisfaction that you won't get? A better financial settlement that won't happen? To show the world that you spouse is a bad person (by the way, almost no one's listening)?
If you decide to enter our legal system in order to obtain a divorce, the following is a brief synopsis of what you can expect to happen. You and your spouse each hire an attorney. One lawyer calls the other. Each attempts to gain the advantage. Neither side gives in and they become intransigent. Work on settlement issues is halted. Threatening letters are exchanged. Finally, suit is filed. First the discovery process, then document requests, then interrogatories (sometimes thicker than an encyclopedia) are exchanged. Depositions are scheduled. Then pre-trial motions, hearings and finally, trial. Protracted court battles lead to mental and physical exhaustion. Court cases can drag on for years. Meanwhile, you are living with the unknown results hanging over your head, waiting for someone else to decide your fate and future. During a divorce, sometimes it seems that everything is in chaos. After the divorce becomes final, it can take several more years for the conflicts to die down.
I have never seen a divorce, handled by qualified and competent attorneys, where one party gets screwed. Most attorneys are good at their jobs. Statistics clearly show that 90% of divorces are settled with reasonable fairness and outcomes for both spouses according to the laws of our state. The reality of our legal system is that it costs a lot of money and takes a lot of time. And for what…when you can achieve the same results (maybe even more fair) for 1/10th of the cost, time and aggravation.
Why this sudden growth of interest in something that has been around since New Testament times? The simple and probably best answer is that divorce mediation works and it works exceedingly well. A more complex answer is the public's growing dissatisfaction with the adversarial process of our legal system. Another answer is the mental health profession's research findings that indicate that children of divorce are harmed more by their parents' conflict that by any other single factor.
What is divorce mediation?
Divorce mediation is a communication process by which a husband and wife resolve the practical and emotional issues of divorce or separation in a mutual, co-operative manner as opposed to an adversarial, competitive manner. Using a neutral mediator to guide the couple's communication, mediation allows couples to make the best possible decisions in the settlement of their divorce, even though they may be in great turmoil and conflict. Given the two parties different values, different abilities and limited resources to face the future, mediation provides a participatory process for them to achieve a successful termination of the partnership that has created children, shared income and accumulated assets. The goal is for each of them to receive the best settlement possible that will satisfy to the greatest extent possible their respective needs and interests, now and in the future.
When a husband and wife divorce, the pain of the conflict can become infinitely damaging to the entire family. One of the goals of divorce mediation is to prevent this conflict from becoming destructive. Unfortunately, as a society we have given little assistance to families in divorce and in most cases we have unknowingly generated more harm and pain through our adversarial system of justice. In fact, our society has constructed a legal remedy for resolving the divorce conflict that is completely antithetical to basic principles of humanity. At the point couples embark on the process of separation and divorce, society advises them to get a zealous attorney to protect themselves. In order to be successful in an adversarial divorce, couples learn to view their spouse as an adversary, resulting in a billion-dollar industry that often generates more conflict and pain for the couple and their children. Because of the nature of the adversarial system, zealous representation is required...even demanded. An attorney who may wish to take a balanced view may be accused of providing weak and ineffective representation. Divorce mediation is an attempt to establish a more humane, cooperative approach to divorce settlement.
How mediation differs from litigation
Divorce requires a lawsuit. One of you must sue the other in order to dissolve your marriage. In doing so, you automatically become adversaries. The law says so.
Is this really a "sane" way to end a marriage? Were you dissolving a business, you would not follow this archaic pattern. You and your partner would visit an attorney together to discuss the terms and prepare the paperwork. Unless it was unusually contentious, the business dissolution would be accomplished without a lawsuit. But our legislatures require that all divorces be conducted as hostile encounters.
Mediation is an attempt to remove your divorce from the adversarial arena of the courthouse. Although you can't avoid a lawsuit, you can avoid the bloody battle. You can choose to sit down with your spouse and a mediator and work out the terms of your divorce fairly and sensibly.
The role of the mediator
Getting divorced is like driving on the beltway in a fog so thick that you can't see more than a few feet in any direction. The decisions you make are critical; a mistake can cause serious damage. But because you can't see the other cars or the road ahead, you don't know which way to turn. You're likely to end up yelling at the person in the passenger seat, who is just as scared as you are and no more able to see clearly.
Couples going through divorce are often caught up in the fog of emotional turmoil. They can't think clearly. They can't see possibilities crucial to their well being. They're so hurt and angry that rational discourse doesn't have a chance.
An experienced divorce mediator is like a driving instructor helping you navigate. Standing outside the fog, he watches your progress, points out when you're about to go off the road or run into another car, and guides you through the treacherous turns on your way home. He also helps you make reasonable choices in a co-operative atmosphere rather than one rife with demands and accusations.
Every mediator has his or her own style of mediation. I am an "issue based mediator". I keep my clients focused on the issues that need to be discussed and resolved in order to come up with a fair and equitable agreement. I'm not a "therapeutic mediator" (eventhough I have been told that there is a tremendous amount of therapeutic benefit for couples who have gone through the mediation process). I believe that couples who want and need therapy should use the services of a qualified therapist. Therapy is their expertise…problem resolution and helping my clients create a fair and equitable separation agreement is my forte.
Mediation: Why it Works
Mediation works because it provides Perspective, Creativity, and finally a Level Playing Field.
Mediation does not mean it's a boy against the girl's scenario. The divorcing couple can be rest assured that each perspective will be heard in a safe environment and will be considered into their agreement.
I am able to bring to the table over 20 years of experience learned from prior divorce mediations. With the experience that I have, it's unlikely that there is anything that can be thrown at me that I haven't seen before.
Also, I am a CPA. Therefore, I am recognized as an expert in property division, tax, finance, mortgage and business. This is extremely beneficial because it helps to offer information, alternatives and solutions. This also gives couples solid information in making decisions today that will affect the rest of their lives. FYI – many attorneys use my services to develop creative and fair division of marital property options for their clients.
Level Playing Field:
This is probably the most overlooked but one of the most important areas of mediation. There is an extreme amount of anxiety and possible mistrust that is generated at the time of a divorce. Making sure that neither spouse overpowers the other with emotional or financial control is critical.
Good mediators can ascertain each person's underlying interest verses their exterior positions and address that interest while keeping the playing field level.
No one wants or likes to be taken advantage of. It's a mediator's responsibility to help make sure both parties are being fair and equitable with each other. Having a good mediator helps ensure that this can happen.
We like to know about the children. What ages they are, what activities are they involved in, have they been informed regarding the impending divorce? With the questions that are asked we are better able to build a profile so that we can be of service in each area that they need. For example, if we find that one of the children has a learning disability, we are better able to address that in the parenting plan and make sure that those needs are considered and accommodations provided.
We are acutely aware of body language. We listen intently to verbal and non-verbal clues that may need to be brought out and addressed.
For instance, if we are discussing alimony, we will watch and listen closely to each party to determine the level of willingness or unwillingness. Perhaps there seems no resistance on the part of the husband to pay alimony but when an amount is mentioned that exceeds his expectation he may be hesitant to verbalize it for fear of polarizing his wife. He then will become fidgety and may make the comment "I don't know how I can even pay rent now."
At that point we may call a caucus. This is where we will ask for a short break to visit with each spouse individually. This is a time when we can further discuss our options and redirect the alimony payment to how much needs to be paid.
The mediator has the ability to handle all the aspects and dynamics of a mediation session.