Why Divorce Mediation Is Better And Why You Should Care

When You Mediate Your Divorce You Begin With The End In Mind

By Kevin J. Grover

Aggressive Litigation As A Strategy: Win At Any Cost

Litigation is a term describing the many routine legal procedures attorneys use when moving a client’s case through the court system. But when litigation is used aggressively during a divorce the result is anything but routine, in fact it can get pretty unpredictable. And it’s because when your attorney forces your husband or wife to do things against their will and begins legally controlling access to their own children, their anger at your lawyer becomes focused on you and added to the reasons why at least one of you wants a divorce in the first place – and do you really need another reason?

Litigating back and forth because of anger, fear or hurt can make your divorce take what seems like forever and cost you tens of thousands of dollars in legal fees or more.

This isn’t to say that all litigated divorces take years and cost a fortune but if you can’t communicate, can’t agree on anything and have healthy bank account – and you go to see an aggressive, experienced divorce litigator – it’s a pretty safe bet.

If getting out of your marriage and money are your motives then the fastest, least expensive way makes the most sense. But angry, fearful and hurt people with divorce lawyers don’t generally act financially or emotionally sensible and divorce litigation is the reason why.

Litigation is very effective for making very unpleasant things happen during a divorce. It can be used to collect and present embarrassing or damaging evidence to gain a tactical advantage – against either of you – to try and get a favorable financial settlement. It can be used to humiliate you by legally designating you at fault for the failure of your marriage. And unfortunately, litigation can also be used to restrict and control child visitation or child custody out of spite by your ex. The fear and anxiety that comes with entering family court for a divorce – if you have a broken heart or a big chip on your shoulder – can make the temptation to use these tactics irresistible – and once it starts you both live with the consequences.

But the biggest problem with aggressive divorce litigation is that it stokes anger and conflict over issues having nothing to do with your legal or marital property rights making it harder to reach a settlement. This creates problems where there were none before - that only it can solve - and makes the existing problems that cause many divorces – like an imbalance of financial or emotional power or a lack of trust and respect worse. Your divorce then becomes like a Chinese Finger Trap - the more you fight, the harder it hangs on and keeps you bound together.

If what went on during your marriage has left you hell-bent on trying to “win your divorce” that is certainly your choice – I’m not in your shoes. But know in advance that divorce is not a “zero-sum game” and so yours is really a “degrees of losing” divorce strategy – there are no “winners”. The ironic part is that U.S. family courts used to let divorcing couples play out their angry drama until they ran out of money or came to their senses and settled. But today with so many states facing budget shortfalls, many family court systems are also running out of money and - out of patience - with stubborn, angry couples and are requiring them to mediate a divorce settlement (at least in part) before they even show up in court and go before the judge.

Mediation As A Divorce Strategy: Begin With The End In Mind

Divorce Mediation isn’t just about dividing your stuff and deciding who “owns” your kids like attorney-led negotiations are, it’s a sane, safe way to make plans for the future while you both decide cooperatively on how to settle your past fairly and with as little damage as possible. Aggressively litigating a divorce is about spite, finding fault and assigning blame in order to be awarded a favorable settlement or child custody and once it gets started how emotionally and financially damaging it is to you – or your children – doesn’t seem to matter in many cases. Mediation is a private and confidential affair, much like your marriage was. Family Court isn’t. Your divorce is going to require you to make some pretty tough decisions and solve problems you’ve never dealt with before – or ever thought you’d have to. A calm environment and a flexible process like mediation is far better than a rigid, intimidating system that views your divorce as something to be “won” or “lost” to make these kinds of decisions.

Divorce Mediation isn’t just a faster, cheaper alternative to attorney-led divorce negotiations. A competent, trained divorce mediator helps their clients by teaching them how to negotiate and solve the problems their divorce is creating, which, by the way, don’t just end after they go to court. The mediation process helps to smooth the transformation of the divorcing couple’s relationship. It’s why so many mediating couples settle out of court successfully, and why so few end up back in court after their divorce is over.

Legal philosophy taught in law schools and consequently the legal system itself views a divorcing couple as legal enemies with conflicting interests – so almost anything goes when it comes to “winning” and “defending your legal rights.” But when you enter the court with a mediated agreement it changes the entire tone of the divorce process. You’ll garner more respect because you’re presenting yourselves as rational, responsible adults who have agreed to abide by the law and meet your responsibilities going forward – and less like angry, irrational people fighting over the past and how to divide your “stuff” and who “owns” your children.

Author Kevin J. Grover is the Vice-President of the RI Divorce Mediation Center