Monday, January 2, 2012

What is Divorce Mediation?

My current favorite way to describe divorce mediation is to compare it with a New York City taxi. 

NYC Taxi from wikimedia commons
(image courtesy of wikimedia commons)

Imagine that the road  to divorce is like getting from one side of New York City (married) to the other side of New York City (divorced).  You’re not sure how to get there, so you need some help from someone who does.

One effective way to get there would be to hire a Sherman Tank to guide your way.   You would get from one side of the city to the other.  Along the way, it would be very expensive, it might require a lot of armor that you don’t really need, and there might be some collateral damage.  Better yet, add in a bit of drama.  Make it a race to get to the other side of the city.  Here's how it works:

You and your soon-to-be-ex each hire your own tank and tank driver, with the tank drivers each promising to "fight" for you so that you can "win" in the battle to get to the other side of the city in the best shape.  There will be a judge who is making everyone follow the rules, deciding what who "wins" each phase, and who will ultimately decide the outcome.  To convince the judge of who is the better player, each tank driver engages a squad of marines to assist the tank in getting to the other side.

As things progress, the driver of the tank and the marines might say and do some things, or take some actions, that you, the original player, didn’t really want them to take.  But you would end up with a "score" against your "opponent," you would live with it, pay the fees for the driver and the marines, as well as gas for the tank, and you would end up divorced.  It's effective.  You end up with things "settled," and you are divorced, even though the process may have left one or both former spouses deeply wounded and their children as collateral damage.  In my mind, this is the equivalent of a typical, litigated divorce.  Unless you think consciously and choose a different action, the model of litigation to get from once side of New York to the other is the default mode.

It works like this:   You go see a lawyer (tank driver).  The lawyer puts you in the tank (takes over your case and manages it for you).  They begin the process by filing court papers (put the tank into gear and drive it). They hire experts along the way to assist  you (marines).  To keep from getting run over by tank, the soon-to-be-ex also feels compelled to hire their own tank and tank driver and marines. (This is called "lawyering up."For each move one of you makes, the other must respond.)   The process also puts the entire decision mechanism in the hands of a judge.  In so doing, it takes away the parties' power to choose their own route and outcome.  All these moves and responses also involve a lot of legal work.  For each move that one side's lawyer makes, the other side must make a counter move.  Conflict escalates, things get lost in translation, and it tends to get adversarial whether the parties want it to, or not.

Not too many people are actually thrilled with this process.  Just ask some of your friends who have been divorced.  It's also very expensive.  The initial retainer, whatever amount it may be, often is just a drop in the bucket of what the overall cost turns out to be in the end.

Well, now there’s an alternative.  Maybe what you really need is not a tank, but a taxi!  You could hire a taxi driver who knows the back roads, the obstacles, how to avoid traffic jams.  Could it even be possible for you and your soon-to-be-ex spouse to share a taxi?  If you are both committed to principles of fairness and you are both ready to disentangle, could you jointly work through the issues that are needed to come up with a fair settlement, especially if you had a guide to help you work through the decisions respectfully and using a process that was neutral and fair?   You could still reach your objective, with a lot less cost, less collateral damage, and with matters more in your own control.

The taxi is not the right choice for everyone.  No doubt about it, if the “other side” is adversarial – if they want to go to battle with you  and fight against you – then you will need that tank (the protection and guidance of a formalized litigation process).  And sometimes you will also need the marines as well.  If your soon to be ex is not committed to fairness (including fairness in the process), then you may need to protect yourself, not just with a good and thorough attorney but also by using professionals like forensic accountants, guardians ad litem, court reporters, paralegals, private detectives, etc..  So, part of figuring out whether divorce mediation is appropriate, is to make a good judgment call about whether you can trust your soon-to-be-ex to play by rules of fairness.  If you cannot trust your spouse to adhere to principles of fairness, or they can't trust you, then the protection of the court system will be needed.

It's a bit of a paradox that for divorce mediation to work, both parties have to be able to trust each other to try and be fair and to try and do the right thing.  But, many people are able to do it.  The reward can be a peaceable, respectful and gracious ending that does not require them to become enemies.  When children are involved, the benefit increases because both parents can continue to work together as a team to parent their children. Divorce mediation, as a means for deciding the major issues that need to be decided for divorce, works best when both parties want to get to the same place (a fair resolution) and are willing to work as a team to get there, with help of a neutral mediator to guide the process.

With a mediator acting as guide, the “taxi ride” to resolving the major issues can be streamlined and cost effective.  Then, when the divorcing couple has reached a complete marital settlement agreement (that does not cut corners on the hard conversations), they take that to attorneys who can then help with the final crossing over the Brooklyn Bridge -- an uncontested court action to make it legal and finalize the divorce.

Divorce mediation is not for everyone.  It requires that both parties (1) be committed to principles of fairness, (2) voluntarily produce full financial disclosure, (3) agree to utilize outside experts such as attorneys, accountants, counselors, if that expertise is needed.  In return, the non-adversarial process can save thousands of dollars, produce a fair divorce agreement, and enable parties to maintain dignity, control, and privacy in their personal family decisions.

Would you like to learn more about mediation?  Feel free to explore the web site for my professional practice, Just Mediation, or call 803-414-0185.  



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7 comments:

  1. I love your metaphor. It's just about perfect. I also wrote a piece on the basics of a litigated vs mediated divorce, in case that would be of help to your readers, at Divorce and Mediating 101, http://candidaabrahamson.wordpress.com/2012/02/17/5-steps-to-divorcing-101/. Thanks for the info.

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  2. When I compare and contrast the mediation experience with the litigated dissolution experience, I feel sorry for the people who took the old fashioned contested path to divorce.

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