A personal comment about divorce…

Before you “retain” an attorney and enter our adversarial based legal system, do yourself a favor. Spend a day in court watching divorce cases. I believe it will prove to be a revelation for you and provide you with a level of understanding about our judicial system that is critically important if you decide to proceed with your divorce through our existing legal system.

Real divorce court proceedings are not like those portrayed on TV in Perry Mason, LA Law, Ali McBeal, The Practice, Law and Order or the hundreds of other legal TV shows. Personal pre-trial objectives such as “I’m going to take him for everything he’s worth” or “I want to make her pay for what she’s done” almost never happens in court. It’s a typical misconception. The reality of our legal system is that our courts and judges are so inundated with cases, they simply want to resolve them as expeditiously as possible. The bottom line is that (as much as you may want it) you’re not going to get the emotional satisfaction from our legal system that you may desire. And, sadly, the practical elements of your divorce (parenting, property division, and financial provisions for each member of the family) are usually settled in a manner which is difficult, if not impossible to understand.

Even well respected judges are confused and perplexed about the legal aspect of the divorce process. In a recent interview with Judge Diane O. Leasure, a Circuit Court judge in Howard County, she 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.

Statistics clearly show that one of the primary reasons couples choose attorneys to handle their divorce is because they each “want to WIN all they can”. While this may sound like good, logical, decision-making for your future, the reality is that most divorce attorneys are good at their jobs. And it usually doesn’t matter what the specific circumstances of the divorce are. It is an extremely rare case when one spouse wins dramatically and the other spouse loses substantially. It simply doesn’t happen. Issues are usually settled (compromised) in some kind of illogical, often mysterious method, where one attorney “gives” on one issue and “gets” on another. That’s the basis of our legal system.

The irony of the entire legal divorce process is that you’re on the sidelines having very little control over the outcome. Yet, you’re the one paying the money. Statistics in Baltimore County indicate that a contested divorce will cost you a minimum of $10,000 each…and many cases double or triple that…depending on the level of conflict. And for what? Emotional satisfaction that you won’t get? A better financial settlement that won’t happen? To show the world that you spouse is a bad person (by the way, almost no one’s listening)?

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.

Why this sudden growth of interest in something that has been around since New Testament times? The simple and probably best answer is that mediation works and it works exceedingly well. Don’t waste all your money in legal fees! Don’t make a bad situation worse for you and your children! Don’t suffer through months and years of delay and disruption to your lives! Don’t lose control of things that are important to you! Don’t suffer endless aggravation and public humiliation! Get what you think is fair and stay in control of the process! Make the best choice for you and your children! Give mediation a try!

All couples who seek divorce through mediation have the same fears, the same sense of rage, greed, betrayal, and vengeful emotions as couples have who have chosen our legal system and its method of adversarial representation.

In a mysterious (yet track tested and proven) manner, mediation somehow redirects these destructive feelings and behaviors by allowing the parties to enter into a resolution together.

Divorce mediation is simply a more sensible way to get divorced than our legal system. It can help because it calms where litigation excites. It emphasizes convergence of interests where litigation emphasizes divergence of rights. Mediation teaches adult problem solving and decision making behavior by allowing the couple a controlled amount of emotional ventilation about and toward each other; by leaving the negotiation to the parties themselves; by encouraging open disclosure to each other; by constantly reminding them that they are not getting divorced from their children; by helping them focus of their mutual interest in providing for the needs of their children; and by seeking win/win solutions.

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 in his or her own way, must grieve his losses and get on with his new life and new roles.

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