Archive for April, 2020

Divorce Mediation- Be Wary

April 16th, 2020 No comments

Divorce Mediation Doesn’t Work But Settlement Is Still a Worthwhile Goal

There’s a trend in matrimonial law toward using “divorce mediators.”  Here’s how one website describes it:

Mediation is one of the most frequently used methods of negotiating a divorce settlement. In divorce mediation, you and your spouse – or, in some cases, the two of you and your respective lawyers – hire a neutral third party, called a mediator, to meet with you in an effort to discuss and resolve the issues in your divorce. The mediator doesn’t make decisions for you, but serves as a facilitator to help you and your spouse figure out what’s best.

In theory, divorce mediation is a great idea.  Litigating the case and involving a judge is an expensive option.  Every court appearance requires the lawyers to drive to court and wait in the courtroom while a judge or law secretary handles a full calendar of cases.  Also, if the dispute involves minor children, the court will appoint a law guardian who becomes the attorney for the children.  In those cases, the litigants are generally obligated to share the cost and pay the law guardian. 

If the parties can settle their disputes out of court, they save money and both parties “win.”  But the process only works if both parties are equal combatants.  Frequently, that is not the case because of the nature of divorce disputes.  In most lawsuits, the parties are strangers and have no or little personal history.  However, married couples share a level of intimacy that is unique.  They each know the other’s physical, emotional, spiritual, financial and personal secrets.  Most times, one party or the other has a psychological edge that comes from knowing the other’s weaknesses.  This may be the case because one party is physically or emotionally abusive of the other.  Or it may be that one party was at “fault” having cheated on the other or having wronged the other by being financially irresponsible.  Or it just may be the nature of married couples who get divorce that one party is just dominant.  In those cases, the “weaker” party cannot effectively advocate for his or herself and the foundation for the mediation – that the parties are equal combatants – collapses. 

I am still a great advocate for attempting to negotiate and settle the issues.  But the parties are more likely to get a fair settlement when they retain attorneys who understand these basic truths:

∙                                   Nobody “wins” a divorce because the parties have to split their assets.  Although, “equitable” distribution doesn’t necessarily mean “equal” distribution, in many situations the parties split their assets evenly;

∙                                   Whatever money is paid to the lawyers, reduces what’s left over to split between the litigants.  It should be a goal (though not always an attainable one) to compromise.  If you leave it to a judge, he’ll usually split the baby anyway!

∙                                   The parties may despise each other, but if they have children, they will never know real peace unless they learn to tolerate each other.  Burning down the literal house by going to “war” with your spouse is a bad way to start the rest of your life.

∙                                   Judges will inevitably press the parties to settle “out of court,” because judicial resources are limited and the court’s dockets are loaded.  There are only so many cases that can be tried.  If you refuse to negotiate, you’ll likely feel pressed to settle at the “courthouse steps.”

∙                                   Divorce litigation is emotionally draining.  The end of a marriage is one of the most emotionally painful human experiences.  When a marriage ends, it’s not just the pain of losing love that you endure. There’s also the sadness at the loss of the dream of living happily ever after and the anger at being unable to trust any kind of permanence.  So, litigants would do well to retain attorneys who have an eye on the long game.  In the end, victory at trial is frequently “pyrrhic” – won at too great a cost to have been worthwhile for the victor.  As the Greek general, Pyrrhus, remarked after winning another costly battle, “another such victory over the Romans, and we are undone.”        

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