Make A Firm Decision to Stay Flexible
“The courts of this country should not be the place where resolution of disputes begin… They should be the place where disputes end after alternative methods of resolving disputes have been considered and tried” – Supreme Court Justice Sandra Day O’Connor (Retired)
By Lori A. Grover, N.C.P.M. and Kevin J. Grover
Lies, Damn Lies and Divorce Statistics
To our knowlege no one has ever taken a poll asking divorced people “If you could do your divorce over, would you use divorce mediation instead?”, so we’ll never know how many couples would have avoided the stress and expense of divorce litigation and opted for mediating their settlement instead. But we do know that when we explain to people what the RI Divorce Mediation Center does and how mediation works, every person who’s been though a divorce says, with a bewildered look on their face, “Boy, I wish I’d known about you guys when I got divorced!” After which they go on to complain about how much their divorce cost, the legal shenanigans that went on and their frustration with the whole process.
While we politely listen and nod our heads…
One reason divorce mediation is growing in popularity is that economic necessity is forcing divorcing couples to reject the costly process of fighting in court to settle their divorce. Lots of consumer debt, the cost of living apart and a lean job market are forcing people to reconsider an expensive and usually unnecessary court battle and economic common sense is winning out over animosity and the desire for revenge. The positive results mediation offers, if the number of new clients referred to us by our former clients is any indication, is another important reason. And this is because mediation offers couples an easier, less expensive way to solve their financial and co-parenting problems and makes the difficult, but necessary decisions easier – by removing the fear of legal coersion. In short, it gives them the freedom and ability to control the process and determine the quality of their lives, and that of their children, going forward.
Although most people believe mediation is a “new” way of settling a divorce, the practice of mediation by a neutral third party began in America with our Native Americans and the 17th century Puritans of the Massachusetts Bay Colony and has far deeper roots stretching back to Ancient Babylon, Classical Greece and the Roman Empire. In the 1950’s and 60’s the evolution of alternative dispute resolution‚ now known as mediation, began it’s refinement and growth in popularity into what it is today. The fact that statistics indicate over 80% of divorcing couples who use mediation settle successfully is pretty convincing evidence that a less confrontational divorce should be a couple’s first option instead of a last resort when litigation fails or becomes too expensive and destructive. The success of mediation is also why many family court systems have implemented their own divorce mediation programs. Couples should be aware, however, that with court mandated mediation programs the mediator’s first duty is to the judge – not to the divorcing couple – and this can make a big difference in both the way the sessions are conducted and how their settlement is structured.
If You Want Something Done Right…
A divorce is a life changing event and it takes courage to master your emotions to sensibly and fairly negotiate a complete emotional and financial separation from someone you once loved and were intimately connected to – but the rewards are worth it. We’ve seen first hand the way mediation completely changes the divorce process and how the court treats couples who are in agreement a little differently – and we would venture to say, with more respect. More respect because you’re entering the legal system – a system staffed with well-educated, responsible professionals – as rational, responsible adults who can manage their own personal and financial problems that are asking for the court’s blessing so they can divorce. Not the opposite – angry, irrational adults who can’t manage their lives who need designated hitters and a referee in a black robe like so many couples do.
Divorces become messy because divorcing people’s lives are often messy. In our opinion, people expect far too much from both their lawyers and family court judges and this is why many people wind up disappointed, angry and disgusted when their divorce is finished. We’ve all heard and read the stories about awful divorces. In the court’s defense, it would be impossible for any judge to preside over an endless parade of conflict and misery and still keep a clear, unbiased frame of mind every moment they’re on the bench. It’s also totally unrealistic to expect a judge to be able to understand, sort out and properly weigh everything that went on during your marriage considering all they have to go by is the snapshot that is your divorce paperwork. Another, equally important thing you should consider is this:
Under what other circumstances would you ever surrender control of your future to a stranger – your attorney – and a system that has no vested interest in your day to day quality of life after it’s job is done?
Try to understand that you’re expecting the court to take the most complex, private part of your life – your marriage – and somehow “process” the complexities of your finances, your past behavior, your kids lives (and their schedules), your work schedules, your parenting responsibilities, your vices and habits, your income (or lack of it) plus your emotions and values – everything about your life. And then render a judgement essentially mandating how you live your lives going forward – because you want a divorce. This is why family court judges are empowered with such judicial latitude. Now complicate this task even further with a pair of aggressive attorneys arguing and posturing on behalf of their clients and you can imagine why so many couples feel helpless and confused when they enter the legal system, even though, to it’s credit, the court does makes a heroic effort to keep the process as user friendly as possible. If you can set your feelings aside for a minute, we think you’ll arrive at the same conclusion couples who chose to mediate their divorce did: “If you wan’t something done right, do it yourself.”
Mediation is clearly the best way to settle your divorce because it is your life, after all, and such important decisions are too important to made by someone else.