Litigation does more than cost money…it takes too much time and prevents divorcing couples from getting on with their lives.

Litigation can do a great deal of damage. In non-domestic cases, litigants are usually strangers, or if they had a relationship in the past, are unlikely to have one in the future. For most divorcing couples, however, this is not the case. They may not want to have to do much together in the future, but if there are children involved, the relationship will continue to exist in an altered form. Mediation can make that future relationship less stressful. Litigation is likely to lead to endless strife.

The sad legacy of divorce is that our legal system is predicated on the assumption that the parties are adversaries. Whether they really are, whether they wish to be, or whether it even makes any sense for them to be, quickly became irrelevant. Like every self-fulfilling prophecy, by assuming that they are adversaries and treating them as such, that is exactly what they become.

I often wonder how the decision was made to classify a divorce as a legal transaction.

The legal process of divorce came into being to settle problems that couldn’t be resolved by any other reasonable method of negotiation. If you really think about it, this makes perfectly good sense. If you can’t settle a disagreement by any other method, our legal system is there to resolve the issue.

What is interesting to me about this is not the intent our forefathers had in setting up a procedural method for resolving disputes, but that its original intent was “if you can’t solve the problem by any other method, our legal system is here to help you”.

Responsible lawyers recognize that though it may be necessary to resort to litigation, it should be used only after all other option shave failed.

I have heard the following comments all too frequently.
“The divorce process is unwieldy.”
“It is too time consuming.”
“Often, it is unbelievably expensive”.
“Its adversarial nature makes the bad feeling already present, worse”.

There is an alternative which makes much better sense from any reasonable perspective. 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 absurd amounts of money to negotiate the terms of your divorce, couples sit down with their neutral intermediary (their mediator) to discuss and agree on a fair and reasonable settlement of all of the issues needed in order to get a legal divorce.

According to a 1997 survey in Maryland, 95% of all divorced couples were dissatisfied with the legal system and the legal process. The areas of most dissatisfaction were that the legal system (1) caused more problems than necessary, (2) resolved important issues on an inequitable and inconsistent basis and (3) cost too much money. Consider the magnitude of this outcry. More than 9 out of every 10 couples believe that our legal system doesn’t resolve the issues of divorce in a fair and equitable manner.

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-line 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.

Mediation provides the divorcing couple with a method of mutually and effectively resolving issues of parenting, property and support in a private, safe, and positive environment. Couples reach an agreement cooperatively rather than in a competitive struggle. Unlike the adversarial process, neither party can win at the other’s expense. Resolutions must emerge from the mediation that are created and accepted by both parties – resolutions that reflect each couple’s individual values and unique needs.

In response to the question about the benefits of mediation, Judge Leasure has stated, “What a lot of courts are doing, when it becomes apparent that there is going to be a dispute as to custody, is to refer the parties to mediation. The goal of mediation is to see if parents can resolve the custody issues and come up with a parenting agreement. I think it’s (mediation) wonderful! In more cases than not, it works very, very well. A lot depends on the parties approach to mediation and the skill of the mediator to get the parties to look beyond the financial and the other issues of the divorce and to try to come up with an agreement which is in the best interest of the child. When custody issues are litigated in court, then you have someone, a complete stranger, making a decision about where the child is going to be living and who is going to make the very important decisions in the child’s life. When the parties in mediation, who know their children and what works best for them, can agree, everyone is much happier. If couples could put aside their anger and negative emotions, they could work out all of the issues of divorce without having to endure the pain and suffering caused by our adversarial-based legal system. I sincerely can not understand why divorcing couples don’t try mediation.”

“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 loose. 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.”

“Divorce mediation is simply a more sensible way to get divorced than our legal system can provide. It can help because it calms where litigation excites. It emphasizes convergence of interests where litigation emphasizes divergence of rights. Mediation promotes adult problem solving and decision making behavior. It leaves negotiation to the parties themselves. It constantly reminds couples that they are not getting divorced from their children. It helps them focus of their mutual interest in providing for the needs of their children. And mediation promotes win/win solutions…nobody loses. The mediation process encourages the parties to keep remembering that they once deeply cared for each other, that they both still care deeply for many of the same people, and that each must get on with his or her new life and new roles.”

If you understand that the process of a legal divorce is a WAR, and that there can be no winner...why fight the battle in that arena? If you understand that a divorce fought through our legal system will cost $10,000 to $50,000 each, and a mediated divorce can cost less than $2,000 (1/10th of the cost of a legal divorce), why not give it a try?

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