Better understanding the advantages of mediation requires a practical knowledge of how divorce litigation works.

Litigation: At the beginning of a divorce, attorneys cannot predict precisely how most issues in that divorce will be resolved if the case eventually goes to trial, because matrimonial law is not a mathematical formula and gives judges great discretion in their decisions. Most issues tend to be resolved within a certain "ball park," but it can be a very broad one. If the law were mathematical formulas, litigation would probably settle much more quickly, because both parties would hear the same story from their attorneys. But they don't. Worse, litigation tends to exaggerate the differences between the parties positions because:

Attorneys are "zealous advocates" for their clients (as required by their ethics code), so they creatively interpret the law, to their client's advantage, even if their positions are unlikely to prevail at trial.

Attorneys almost universally engage in "positional bargaining." That means taking distorted positions on the issues based on a negotiation strategy, rather than on a realistic appraisal of the overall situation and both parties' underlying needs.

Much of litigation often a year or more of preparing for trial (which is 99% certain not to occur), is an adversarial process of attorneys seeking "leverage." The process is opaque to the parties, so they are highly dependent on their attorneys, who are the drivers of the litigation and the settlement. The focus in litigation is on the parties' "right," but "rights" can only be established at a trial and have little relationship to the parties' lives. No one in the process has ongoing responsibility for looking at the overall circumstances of the whole family unit and generating options for how everyone can go on with their lives. In the few cases that are resolved at trial, results may or may not be fair or just. The quality of judges, human beings with their own frailties, like the rest of us, is tremendously variable. Going to trial is a game of "Russian Roulette," since the results are so unpredictable, sometimes disastrous for everyone.

Litigation tends to focus the parties on what happened in the past, when they need to be future focused, coming up with ways for everyone to go on with their lives in the best ways possible. It fosters fantasies of vindication, "the judge will tell what a ___________you are." Of course, that never happens. The extreme pressures which occur in divorce litigation can devastate people's lives and careers, creating pathology, like domestic violence, in families in which it never occurred before.

We need to have courts with all its safeguards to handle the worst 5% of divorce, where people's lives are in danger or there is other extreme dysfunction which leaves no other options for reasonably resolving the case. But the vast majority of divorces don't need that type of system, with all its time, expense, acrimony and toxic side effects.

Mediation is a practical process focused on the life circumstances of the parties and their own ideas, beliefs and values. Mediation is based on self-determination and informed consent, so the process must be transparent to the parties, because they are making the decisions based on their own criteria and the circumstances and limitations of their own lives. Throughout the mediation the parties are focused on how to collaborate to settle issues in ways that work for everyone. They have only generated sufficient information and documentation when both agree they have. There is only a settlement when they both feel good about it.

The mediator helps the parties:

• each define their needs and what they think is fair,
• understand relevant law,
• get what each party feels is sufficient information for him or her to rely on in settling,
• create a process that works for them in which they can work out the settlement,
• generate options for resolving the issues in the divorce,
• stay focused on the ultimate issues and cries, which might distract from the ultimate settling, and
• avail themselves of other resources when needed, such as accountants or appraisers.

A good mediator is always focuses on the integrity of the process that must enable the parties to create a settlement that works for both parties and their children. There no guarantees in a divorce mediation; it's just the best insurance against the divorce that ruins your life.

Mediation with a qualified, highly experienced divorce mediator like Doug Schoenberg is NOT:

• a lesser quality divorce; it generally leads to better settlements, which avoid future litigation.
• done with inadequate resources, since the parties can choose to utilize any resources they could use in a litigated divorce.
• "making nice," as each party acts in his or her self interest to get what they need.
• likely to go on for a long time; cases usually settle far faster than in litigation.

Call me for answers to your questions concerning family law and the process options (mediation, litigation, etc.) available to your clients/congregates. You're concerned that your congregates or clients and their children not get unnecessarily hurt in a divorce. So am I; that's why I moved from matrimonial litigation to focus on divorce mediation in 1993. My experience (link to My Experience) as a divorce litigator and the months of testimony I heard on the Divorce Law Study Commission convinced me that many people ruined their lives (and their children's) unnecessarily in their divorces because they didn't make choices early on, when their judgments are often most clouded by emotions, about what their priorities were and how they would go about doing their divorces. The courts need to be available as a last resort. But the vast majority of divorces (perhaps 85-90% don't need to be in the courts and could be accomplished far more fairly, expeditiously, cost-effectively, and with less acrimony through mediation (link to the Benefits of Mediation). A well-mediated settlement agreement also is far more likely to keep then out of court in the future, too.

Whether you want to help them to start their divorce in the right direction by directing them to an appropriate professional or you merely want to ask a couple of questions, contact me. I'll be happy to tell you about how I work in mediation and answer your questions concerning your clients/congregates' family law issues. Couples usually do better in divorce mediation when they have been referred by someone they trust, such as the mental health professionals or clergyman. I love to help couple come together, too. If your clients are discussing marriage with you and want to have a prenuptial agreement, the process of creating that prenup should help them to come together, not threaten the relationship. Mediating a prenup (link to Mediating Your Prenuptial Agreement) gives them the opportunity to discuss important issues they probably ought to discuss anyway prior to the wedding in a loving, constructive, non-adversarial fashion. I am also happy to speak to groups about issues related to divorce and divorce mediation. Whether you need a speaker for the men's or women's club in your congregation or a group of mental health professionals, feel free to call me.