THE BENEFITS OF MEDIATION

What is divorce about?

Divorce is about two things: physical arrangements for children and money. Money and issues about children are the issues which people mist resolve to get the divorce over. About 99% of divorces settle those issues, sooner or later, one way or another; only about one in 200 New Jersey divorces have a trial in which the judge resolves those issues

You can fight about those issues in litigation or resolve them in mediation. Once you settle those issues, the rest of the divorce is a formality, filing forms and paying the court filing fees. Although you may be emotional about issues that led to the divorce, those issues, whether adultery or the other issues recognized by law as "causes of action" rarely have legal significance.

Mediation is a confidential, faster, less expensive and less acrimonious way of getting a divorce. It was invented more than 30 yeas ago by attorneys and mental health professionals in response to the time, expense and acrimony of litigated divorces. The divorce mediation process takes into account the human, as well as legal and financial needs of the divorcing couple and their family.

Mediation has become a popular way to settle divorces expeditiously, reduce costs- both financial and emotional- and has greater potential for creative settlements that work for the parties and their children. The mediation process, by its nature, is far more cost-effective than litigation. In many parts of the country, like California, Texas, Florida, etc, mediation has become the standard way divorces are done.

Divorce litigation, the adversarial system, is an attorney- run process focused on ill-defined rights, rather than a pragmatic approach to how the divorcing parties and their children can go on with their lives. Sitting through the hearings of the Divorce Law Study Commission taught me how dissatisfied hundreds of divorce people were with the process they had gone through in the courts, a process which they didn't understand and in which they felt our of control for many months concerning the costs, the process and the settlement.

Divorce litigation is an inefficient process, as is all litigation. Litigation is designed to handle the worst cases and observe the Constitutional rights which protect the litigant from the courts when the judiciary gets involved in our lives. It is a process of spending many months and hundreds of attorney hours preparing for a trial pursuant to the elaborate and complex Rules of Court, a trial which is about 99% certain never to occur. The Court system needs to be there, but the vast majority of divorces don't need that system and will settle in mediation more quickly, with a far less expense and acrimony than in litigation.

The complexity and unfamiliarity of the litigation process, makes the parties feel helpless, reliant on their attorneys. A lot of attorneys think that it's their case, not the client's and that only they know the right solution, further alienating the divorcing parties.

In mediation the emphasis is on the parties understanding everything: the legal requirements, the issues that must be settled, the facts relevant to those issues, how each party can figure out what he/she thinks the settlement should look like and ways of working out practical solutions that work for everyone to difficult problems.

During mediation, you and your spouse will learn self-reliance and the skills to settle future disputes which may arise after the divorce over ongoing parenting or other issues about which the parties still need to communicate with each other.

In mediation, it's your decision whether or not to hire an attorney and how to utilize him or her. If you want to retain counsel, I can help you find a mediation friendly attorney who won't create warfare you don't want. If you don't want an attorney, I'll respect your decision. As a highly experienced mediator I will discuss your options for how to utilize legal advice in the mediation in ways that work for you, whether you want to consult with your attorney during the mediation or just after the memorandum of understanding is completed or even bring your attorney to some or all mediation sessions.

Most people going through a divorce would benefit from the advice of counsel, but the role of an attorney in a mediated divorce is limited one: providing the client with legal advice (part of the information you may consider), filing papers, etc., rather than running the divorce. Even if you choose to have attorneys, mediated divorces are far less expensive and you will have much more control over the divorce process and the terms of settlement.

Litigation or mediation, there are no fairness guarantees, nor are there reliable surveys about which produces more "fair" settlements. Usually different people have different ideas of what's fair! Are the courts "fair?" In most litigated divorces no one is the courthouse ever even reviews your settlement for "fairness," only for whether the parties testify that they think it's fair. Only about 1% of divorces conclude in a trial, with the judge making decisions based on "equity." In 99% of divorces the case settles, the judge never even reads the divorce agreement and the judge states on the record in open court that he makes no findings concerning it's fairness. There are no reliable surveys comparing "fairness" between litigated and mediated divorces. The courts do not allow social scientist to collect information about divorce settlement terms. However, there are reliable surveys that demonstrate the people who mediated their divorces tend to be much more satisfied with their divorces.

Many people are afraid they will get such with an unfair resolution in a litigated divorce. It's a good thing to the afraid of, since the attorney's role is to get as much as he can from his client, the opposite of equity. Agreements are often reached after months of litigation, when the parties are emotionally and financially exhausted. The "fairness" of the agreement is often dependent on who had a better attorney, or which attorney did a better job in the case, or who got a lucky break when a judge made a pendente lite decision, or whether the judge was assigned to a pro-woman or a pro-man judge, or…. Cases may take longer to settle based on which such random issues as whether there is a history of "bad blood" between the attorneys, or whether either attorney gave his client unrealistic expectations early on based on incomplete information.

By contrast mediation may have multiple levels at which the "fairness" of the agreement is reviewed, by the parties' attorneys or others they may choose to consult with.

All human relationships have power imbalances. In many marriages, one spouse might tend to have more influence on decisions about money, the other, perhaps, more influence concerning parenting issues. A good mediator supports each spouse in developing his/her own ideas about what the settlement should look like, so he/she can advocate for it. That never means taking either party's side. The goal is a mediation process with integrity. When necessary, I intervene only to "level the playing field" so each party can be his/her own advocate.

Divorce attorneys accustomed to seeing the world in terms of leverage and coercion, often have stereotypes about gender and power imbalances. As a mediator, I am sensitive to the dynamics and particular circumstances of each couple I work with…. That's what makes a case interesting and challenging! Often one spouse in a mediation needs assistance defining his or her "settlement model" or advocating concerning one set of issues, the other spouse may need help on the other issues. I find myself "helping to level the playing field" for men and women roughly equally.

What is the difference between Mediation and Litigation?