Divorce Mediation: Because No One Wins in Divorce

Divorce mediation: because no one wins in Divorce.

Family law is the area of law that governs the issues arising from the end of relationships.

There is no sugarcoating divorce: It sucks, and there are no winners.   I hear these phrases a lot in my practice: “It’s not fair, it’s not my fault!” “Why does he get half of the house?” “Why should I share the children when she’s the one who cheated on me?”  “What do I get out of this divorce?” “She can leave if she wants, I don’t care, but why must I give her half the equity of the house?  I didn’t choose to end this relationship, she did.”

A scene from the Sopranos sums up family court.  “I just want what I am entitled to.”  “You’re entitled to shit!”

 

It breaks my heart that my clients are going through involuntary separations.  Promises are broken and their marriage is ending, and all the law gives them is half?  Half time with the kids, half the house, half of all debts.  HALF!?  It is completely unfair.

If your marriage is ending, the first time I urge you to do is to seek out a therapist, who is your emotional support system.  Talk out your fears and anger.

Then, when time has passed, you and your spouse only need to agree on ONE thing to move forward – and that is the decision to mediate.  It doesn’t matter that you are on opposites ends of what you want with the kids, the assets, the debts, or support.  You just need to agree to mediate.

One you have agreed, here are some important points:

      1.  Understand the mediator’s role.  We are not your lawyer, or your therapist.  While legal and emotional issues commonly arise in the mediation sessions, as a mediator, my job is to remain neutral and use my knowledge and expertise from 20 years of being a family lawyer to help facilitate an agreement on some, or all issues.
      2. You may not settle everything in one session, or ever.  Some people reject mediation because they are too angry, and cannot imagine being in a room with the other person. However, if the couple is arguing over the parenting time of their children, the Judge will not see you unless you have previously seen a court-appointed mediator and tried to resolve issues on your own.  By law, you MUST try and mediate.  The mediator may not be able to resolve all of your issues in that one session, but I guarantee, the mediator will be able to reach a few key agreements that will make it easier for you to reach a global settlement.  Couples who cannot communicate alone benefit greatly from the presence of a neutral mediator, who is not a biased attorney “hired gun” ready to kill the other side at all costs to win.
      3. You can still hire a lawyer if you are in mediation, and it will be cheaper.  It’s called a “consulting attorney”.  In the collaborative divorce community, there are many skilled lawyers whose goal is NOT to deplete your assets in their quest to “win” your divorce.  If you need a lawyer for a few hours while you’re in mediation, whether it be on certain issues, or to see if the agreement is “fair”, you have the opportunity to hire a consulting attorney, who will look over the documents and advise you in a limited scope capacity (per hour, with little to no retainer), for much less cost than a traditional representational attorney (whose retainer starts at $10,000, sometimes $25,000!).

In most cases, mediation is worth a try.  Why spend more money that you have to, especially since you already by law only have HALF?

Mediation may not be right in the following circumstances:

  1.  Domestic violence/abuse.  Self-explanatory.
  2. Where one person does NOT want to settle because they do NOT want the divorce.  In a case like this, the person unwilling to accept the reality of the separation will do everything possible to stall, and fight.  In cases with abuse, mediation may not be possible.
  3. Where one person is hiding assets (although, in my experience, this is typically not the case.  The outspouse may not have all the information ready because he/she didn’t handle the finances during the marriage, but that does not mean he/she cannot easily obtain the information.  In most instances, the inspouse has shared all of the information, or is willing to share it.  It’s the law).

Finally, remember, litigation is taking someone to court so the Judge can order them to do or not do something.  Litigation lawyers are HIRED to “win in court”.  In a divorce, there is no winning.  It’s a no-fault state, and courts are not in the business of revenge.  No one cares who cheated or who is cheating or who is a deadbeat or a bad mom.  There is no “winning” in divorce.  So before you write a $10,000 to a lawyer to “win”, why don’t you try giving mediation a chance?  It starts with you and your spouse agreeing on one thing: that you will mediate.

Have a case like this?

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