The hard road through “Divorce Mediation”: It is worth it.

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While frankly most of cases that come to us are initially not suitable for mediation–the couples just have to get the anger out of their system in courts–most divorce cases eventually get to that point of exhaustion. The main factor that makes a difference is timing, which is in direct relationship to costs of litigation. The longer divorcing couples fight in court, the higher the legal costs climb, and at least in most cases eventually they come to where they get sick of paying us (attorneys) and warm up to a compromising mood.

Why does it vary so much from case to case?

As I noted, for some couples the level of emotions and anger, from one side or both, makes initial moves towards compromise nearly impossible. These individuals who hear for the first time what the rights of the “other” party (spouse) legally are, get upset. That sense of entitlement to get what THEY think they surely deserve is replaced with the reality that the courts see a couple in a California divorce legally on an equal footing when a case begins, and only weigh objective factors in making decisions going forward; how much each spouse earns? What is their standard of living when they separate? Did one spouse help pay for the other’s education? Is one of them the primary caregiver to their children? How long have they been married?…and a hundred other really great questions. Once we explain to a client why the court is interested in asking these questions we expect a light bulb to go on in that client’s mind; allowing the illumination of what they have to deal with and agree to. Well, not so fast! Some people listen well; can manage their anger and emotions; can grieve the loss of their marriage and still go on living. Others; well, I have had clients for whom I have had to repeat several times the same explanation for why taking something to court would be a bad idea, and most likely a court would not rule in their favor on that issue. I have realized that sometimes a person may simply lack the willingness to understand–at least at that moment in time. Whether motivated by fear, anger, hurt, or need for revenge, they insist on what will amount to a waste of time and money in court with near certainty. To a great extent this is even normal and understandable when someone is going through a divorce. The question is can they get beyond that stage and not let those negative emotions run their lives and their divorce case in court.

Depending on the legal issue, sometimes an attorney has to follow the path forward based on what the client wants and cannot make that decision for them. If the decision is made after full disclosure and advisement by the attorney, and the client still insists on going to court and asking for what they cannot likely have, the attorney has to make a decision. There is no single good and correct answer. If the issue is one the attorney legally or ethically cannot abide, we have the duty to avoid that course and even leave that representation. But, barring some major issue that forces an attorney to exit the case, sometimes there is no better option that just walking your client to the court, try and make the best argument for their side, even if you really think you will lose that day. Why? Because, for one thing we have the obligation to represent a client zealously. And, maybe more importantly, sometimes a client just needs to “hear it from a judge”. Then, and only then, they might be open to calmly proceed forward. By the way, the same is more often true of the opposing side. Sometimes we have to take the matter to court, because the other spouse, or their attorney, or both, have to hear it “from the judge”. That is par for the course in an adversarial legal system. But, where we have a duty to promote settlement in a family law matter is literally where we have more control over, which is our own side. I find that my first job is to educate my client, because where knowledge brings peace and relief, ignorance breeds fear and fight.

Above is a good example of why and how mediation might not work for everyone. At times it can get even worse. There are cases when even after a judge issues an order, a client considers it more like a “suggestion” than what it really is: “Do this, and if you do not, we can hold you in contempt!”. That is a sure sign that whatever we are doing is not really working for this client. It is not much different from a patient who refuses to take his/her prescribed medications. Sadly, that is an example of a type of case I am willing to walk away from. Simple truth is you cannot help everyone, and you certainly cannot help someone who does not listen and works against their own best interest.

Now that I have painted an ugly picture of how things can go badly in a divorce, let me say this: Most cases, even the ones who are litigated in a family court, eventually resolve by compromise, agreement, and in mediation. Only a very small percentage of all cases ever reach a full blown evidentiary hearing or trial. In fact, I have had cases that have resolved by settlement right before a trial, or even after a day or two in trial, when both sides feel the stress and pressure that the process brings with it.

So you see, at the end of the day, when you are able to, and if you are the suitable candidate for a peaceful mediation and negotiation process; keeping your emotions in check, getting some therapy if you need it, and listening to someone who both knows the law, and can explain it to you, might save you from much more pain you otherwise would suffer in experiencing divorce; saving a ton of money is also helpful.

Last, but not least; most mediations fail because either one party is just unwilling to accept the extent of the other person’s rights, or they use the mediation session as a forum to act out and just vent instead of also making progress towards a resolution. Also, the same faulty communication that ruled the marriage might persists in mediation, or fear that they are leaving something behind on the table paralyzes them from making decisions. No silver bullets here–just hope that it is always worth a try, and…it nearly always works–eventually…Good luck!