The Reality of Divorce Mediation

The reality of divorce is that it usually brings out the worst in people. During divorce, most people do things, say things, think things, and feel things that they’ve never done, said, thought, or felt before…and that they will never do, say, think, or feel in the future.
Ask anybody who’s gone through it. Anybody. Divorce stinks. They all hate it. Ask everybody you know. I doubt if you’ll find even one exception.

  • They hate the legal process required in order to get a divorce.
  • They hate the delays.
  • They hate the lack of control.
  • They hate the endless amount of time it takes to go through the process.
  • They hate the pain that it inflicts.
  • They hate the fact that their lives are “on hold” until settlement is reached.
  • They hate the fact that our legal system rarely settles things in an understandably fair and equitable manner.
  • They hate the fact that, no matter what the outcome, both spouses feel like losers.
  • They hate the fact that they don’t understand why it was so easy to get married and so incredibly difficult to get divorced.
  • They hate what it’s doing to their children.
  • They hate the reality that they’re stuck being parents together. No matter how awful their divorce gets and how simply nauseating it is to be in the same room with someone they intensely hate, they are still parents together. And they will continue to be parents as long as they both are living. Not just until their children are grown, but forever (graduations, athletic events, weddings, grandchildren, divorces and funerals). Each one of these events will jerk them back in to a co-parenting mode. They can’t get out of it…ever.
  • And, they especially hate the thousands and thousands of dollars they’ve wasted on attorneys for something that they know could have been settled if they would have acted like mature, reasonable adults.

Most divorcing couples simply get caught up in the conflict. They want to win so bad, they lose reasonable perspective. They lose their common sense. They make a very expensive mistake. And even after the wounds of the battle are healed, they will remember how stupid they were for the rest of their lives.

But it doesn’t have to be that way. There are choices other than our adversarial-based legal system. And the most successful of these alternatives is divorce mediation.

If you’ve decided to divorce, there are some important facts that you should know:

The sad reality is that almost one in two first marriages ends in divorce. Fully half of all second marriages meet a similar fate. It is not unusual for litigation costs in divorce cases (lawyers, mental health professionals, appraisers, accountants, rehabilitation experts, depositions, interrogatories, etc.) to run upwards of $25,000 to $75,000 for each party – even more in a contested custody case. It is not uncommon for parties to conclude their divorce having spent all their savings, all the funds set aside for their children’s education, and all of the equity in their home. Bankruptcy and foreclosure are all too frequently the result of the financial devastation of divorce.

Being “right” or “winning” is of little comfort. Rarely does either party to a divorce case leave court with a good taste in his or her mouth. Even a “victory” is tempered by dissatisfaction with the cost, the endless delays, the public disclosure of intensely personal matters, and the realization that the judicial system is simply not equipped to deal effectively with personal relationships.

It is important to remember that lawyers are trained in an adversarial and confrontational method of doing business. The theory is that if the attorney for each party zealously advocates his or her client’s cause, mightily bashing the other party in the process, the truth will somehow emerge and a wise judge will make a fair and equitable decision. While this practice model may work in other areas of the law, it is not well suited to the resolution of disputes between people who are dealing with the level of chaos, which they never could have anticipated and for which no preparation is possible. A confrontational approach does little to heal and much to prolong and exacerbate the pain.

If there were no legal system, no lawyers and no courts, divorce would still be difficult and it would still take time to go through it. Divorce is a major crossroad in your life, maybe even a full-blown life crisis.

So, here you are, you and your spouse, going through these incredibly devastating personal life changes, when the State comes along and says, “Excuse me! You can’t go through this without us. Your divorce has to be conducted on our field and under our rules…and the system is so complicated that you can’t even hope to understand our rules. Oh, by the way, this divorce system we’re going to put you through has no tools for helping you solve problems or negotiate with your spouse. In fact, our system is based on conflict and it is specially designed to cause trouble and greatly increase your expense. Please pay your filing fees on the way in.”

The rules of our judicial system control the way your attorney works with you. Your attorney is required to be “adversarial,” that is, aggressive and combative. The adversary system and the way lawyers work in it are a major cause of conflict, trouble and the high cost of divorce. 
In spite of the way things seem, lawyers are not always villains and not always to blame for stirring up conflict. But even for lawyers who mean well, the tools they use and the system they work within will almost always increase conflict. And increased conflict always costs more money and rarely gets better results for either spouse. This is the irony of the entire process.

Professional standards of practice dictate how a lawyer will conduct your case. For example, professional ethics forbid your lawyer to communicate directly with your spouse – the adversary. It is expected, instead, that your spouse will be represented by an attorney, and your lawyer can only communicate through your spouse’s lawyer. This means that your attorney can’t even “talk” to your spouse, or explain to your spouse how you see things, or even help you talk to each other. It means that your attorney will always have a one-sided view of your case and can never achieve an understanding any greater than your own.

If you retain a lawyer, he will definitely take your case into the contested cycle of the legal system because that is the only thing he can do. He has to. There are no other formal tools a lawyer can use.

If either spouse retains an attorney, that attorney will invariably write formal letters, file legal papers, make motions, and do discovery. These actions will surely cause the other spouse to get an attorney too. Now, instead of two people who don’t communicate well, you have four people who don’t communicate well. The case is now contested and the cost and conflict level will go way up. Attorneys tend to ask for much more than they expect to get; it’s considered “good” practice. Your spouse’s attorney will oppose your lawyer’s exaggerated demands by offering less than you are willing to give and by attacking you and your case at the weakest points.

Now you’re off to an aggressive, confrontational start and soon you’ll have a hotly contested case, lots of cost, and a couple of very upset spouses. It happens almost every time.

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)?

If you decide to enter our legal system in order to obtain a divorce, the following is a brief synopsis of what you can expect to happen. You and your spouse each hire an attorney. One lawyer calls the other. Each attempts to gain the advantage. Neither side gives in and they become intransigent. Work on settlement issues is halted. Threatening letters are exchanged. Finally, suit is filed. First the discovery process, then document requests, then interrogatories (sometimes thicker than an encyclopedia) are exchanged. Depositions are scheduled. Then pre-trial motions, hearings and finally, trial. Protracted court battles lead to mental and physical exhaustion. Court cases can drag on for years. Meanwhile, you are living with the unknown results hanging over your head, waiting for someone else to decide your fate and future. During a divorce, sometimes it seems that everything is in chaos. After the divorce becomes final, it can take several more years for the conflicts to die down.

I have never seen a divorce, handled by qualified and competent attorneys, where one party gets screwed. Most attorneys are good at their jobs. Statistics clearly show that 99% of divorces are settled with reasonable fairness and outcomes for both spouses according to the laws of our state. The reality of our legal system is that it costs a lot of money and takes a lot of time. And for what…when you can achieve the same results (maybe even more fair) for 1/10th of the cost, time and aggravation.