Supreme Court Justice Warren Berger once said that he “did not believe that people wanted the important decisions of their lives to be made by black robed judges in wood-lined courtrooms while being represented by lawyers in three-piece suits. In the final analysis, we must ask ourselves why we would choose to leave these important decisions in the hands of others when a realistic and cost effective alternative exists? That alternative is a process known as mediation.”

The sad reality is that almost one in two first marriages ends in divorce. Fully half of all second marriages meet a similar fate. It is not unusual for litigation costs in divorce cases (lawyers, mental health professionals, appraisers, accountants, rehabilitation experts, depositions, interrogatories, etc.) to run upwards of $25,000 for each party – even more in a contested custody case. It is not uncommon for parties to conclude their divorce having spent all their savings, all the funds set aside for their children’s education, and all of the equity in their home. Bankruptcy and foreclosure are all too frequently the result of the financial devastation of divorce.

Being “right” or “winning” is of little comfort. Rarely does either party to a divorce case leave court with a good taste in his or her mouth. Even a “victory” is tempered by dissatisfaction with the cost, the endless delays, the public disclosure of intensely personal matters, and the realization that the judicial system is simply not equipped to deal effectively with personal relationships.

It is important to remember that lawyers are trained in an adversarial and confrontational method of doing business. The theory is that if the attorney for each party zealously advocates his or her client’s cause, mightily bashing the other party in the process, the truth will somehow emerge and a wise judge will make a fair and equitable decision. While this practice model may work in other areas of the law, it is not well suited to the resolution of personal disputes between married couples who are dealing with the level of chaos, which they never could have anticipated and for which no preparation is possible. A confrontational approach does little to heal and much to prolong and exacerbate the pain.

If there were no legal system, no lawyers and no courts, divorce would still be difficult and it would still take time to go through it. Divorce is a major crossroad in your life, maybe even a full-blown life crisis.

So, here you are, you and your spouse, going through these incredibly devastating personal life changes, when the State comes along and says, “Excuse me! You can’t go through this without us. Your divorce has to be conducted on our field and under our rules…and the system is so complicated that you can’t even hope to understand our rules. Oh, by the way, this divorce system we’re going to put you through has no tools for helping you solve problems or negotiate with your spouse. In fact, our system is based on conflict and it is specially designed to cause trouble and greatly increase your expense. Please pay your filing fees on the way in.”

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 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, he will definitely take your case into the contested cycle of the legal system because that is the only thing he can do. He 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, 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.

Even well respected judges are confused and perplexed about the legal aspect of the divorce process. In a recent interview, Judge Diane O. Leasure, a Circuit Court judge in Howard County, states that “What amazes me is that when divorcing couples come before me to settle the issues of divorce, they are essentially asking a total stranger to make decisions about people they hardly know. We only see people for the duration of the trial so our assessment as to personalities and the like is pretty limited. Also, the responsibility of attorneys is to try to convince me that one parent is better and more capable than the other and deserves favorable treatment regarding the decisions I have to make about division of property, child support, spousal support and, most complex, decisions about the children.” These are decisions that truly require the Wisdom of Solomon.

In response to the question about the benefits of mediation, Judge Leasure has stated, “A willing couple and a talented mediator can save a tremendous amount of money, time, aggravation and, most important, come up with an agreement that works for everyone involved. Mediation should be a divorcing couple’s first step…before hiring an attorney and entering our legal world. Statistics clearly show that our court system is ill equipped to deal with the issues of divorce as effectively as the couple themselves. Divorcing couples have everything to gain and absolutely nothing to lose. If it works, and I understand that 83% of mediated cases settle, so much the better. If it doesn’t, the legal option is still open and nothing that has been discussed or disclosed in mediation will have any bearing on the future legal process.”

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Owings Mills Mediation
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