Saturday, December 31, 2011

A Bad Day In Mediation is Better than a Good Day in Litigation, Part II

In my last blog post I wrote some reasons why I quip, “A bad day in mediation is better than a good day in litigation.”  There are exceptions to the rule.  There are cases which should not be resolved through mediation.  But largely, mediation clients report a higher rate of satisfaction with the outcome of their divorce.  A concrete example involves a couple I mediated for some time ago. 

We were just finalizing the last aspects of their divorce agreement.  Their negotiation, over a period of months, had gone relatively smoothly. Both parties were committed to fairness and civility in their divorce process, and both also wanted to keep the impact on their children as small as possible. Each was willing to compromise and help find ways to lessen negative impacts on the other.

On the other hand, their task of parting ways had not been easy, financially or emotionally. Namely, there wasn’t nearly enough money to support two separate households on a middle class standard. Nor did they have significant savings or retirement to share. This meant that both were facing an even more uncertain future.

As they parted ways, even acting as a team and working to try and stretch their budgets, each one was going to come up a bit short of what they really needed. The final negotiations were intense. Finally, after several hours of discussions and revisions, going over details and crunching numbers with a neutral financial analyst, a settlement was reached that everyone felt would be adequate and fair.

This settlement was probably the best, most fair, settlement anyone could have come up with. By enabling this couple to work together, and also using appropriate professional resources, mediation actually enabled this couple to achieve a much better settlement for both of them than would have been possible had they been in adversarial camps.   Eliminating the cost of contested litigation had saved tens of thousands of dollars, and then they were also able to work as a team to employ some tax planning and structure their settlement to maximize benefit overall.  So while the future may have looked sparse, it looked a lot better than the scorched earth they would have been facing if they had litigated rather than mediated.  

bombed-village-medium by Mia Farrow

All in all, it was a resounding success in terms of result. The agreement was reviewed, signed, and copied.  When I came back in the room, everyone was relieved that it was over. Including me. I was so happy that I made the comment that now we needed to have a glass of champagne.

Wrong thing to say.

I looked up, and one of the parties was blinking rapidly. I noticed a quivering lip and shaking hand. Clearly, losing their marriage, being reduced to a substantially lower standard of living, having to sell their home, and having their entire life narrative turned up on its end and shaken like a salt shaker, was not something they felt should be celebrated with a glass of champagne. This person told me in no uncertain terms that they didn’t think this was any kind of event to celebrate with champagne. And truly, how insensitive of me. I apologized.

Yet on the other hand, even if I said it in the wrong way, at the wrong place, and in the wrong time, there was still much to celebrate.  The parties had succeeded in separating their lives financially and soon-to-be legally. They achieved a property settlement anyone would think was fair. They arranged their finances so both spouses would have what they needed to get by, even if their budgets would be tight. They did not spent $40,000 on litigation. And they were still sitting in the same room together, able to cooperate and have a civil conversation, even agree on continued parenting arrangements and dovetailed estate plans. 

Although this ending was very different from how that spouse had previously dreamed or envisioned their life would be, it was so much better than could be achieved by way of the other divorce alternatives.

A bad day in mediation is, still, better than a good day in litigation!

Perhaps sometime in their future, they might consider raising a toast to the good years they had together, the children they continue to share, and a parting that was less damaging.  Who knows, perhaps someday they’ll even be able to raise a glass not only to their marriage, but also to a divorce process that enabled them to remain friends through the end.   By taking the high road and by seeking win-win solutions, this couple made their world and their future – even their broken world – a better place. That is worth serious applause. It is even worth celebrating.

I can’t take away the fact that divorce is sad and painful.  But it doesn’t have to be as bad as litigation can make it.  My goal is to enable my clients to rewrite the story of their marriage so that it has a happier ending.   A good day for me, is when that happens. Thankfully, and believe it or not, they happen often. That’s why I love my job.


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  1. After a couple got divorced I saw the woman offer her hand to the man- because she was happy. He didn't shake, he wasn't so happy about it. There is no 100% perfect way to act in a situation like that.

  2. That's true. Mediation is not only aimed to reconcile differences and save marriage. It can also be a way to end things right and save what's left in the relationship legally. There's nothing that can't be settled if both parties are willing to cooperate.


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