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 different legal procedures attorneys use when moving a client’s case through the court system. But when litigation is used aggressively during a divorce the results can be pretty unpredictable – for both of you. This is because when your attorney forces your husband or wife to do things against their will or tries to use access to your own children as part of their legal strategy, your spouse’s anger at your lawyer will become focused on you and becomes one more reason why at least one of you wants the divorce in the first place – and do you really need another reason?
Litigating back and forth because of anger, fear or past hurt can make a divorce take what seems like forever and cost tens of thousands of dollars in legal fees or even more.
This isn’t to say that all litigated divorces take years and cost a fortune but if you can’t communicate with each other, can’t agree on anything and you have a healthy bank account and you retain an aggressive, experienced divorce litigator it’s a pretty safe bet it will.
If ending your marriage and keeping your fair share of money and marital assets is your motive then the fastest, easiest, least expensive way of making that happen makes the most sense. But angry, fearful people with hurt feelings – an aggressive divorce lawyer representing them – don’t always act rational and sensible and aggressive divorce litigation only makes matters worse.
Aggressive litigation is very effective in making 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 – in an effort to be awarded a favorable financial settlement by the judge. It can be used to humiliate you by legally designating you at fault for the failure of your marriage and unfortunately, litigation can 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 – especially when you have a broken heart or a chip on your shoulder – can make the temptation to use these tactics irresistible, and once it begins it’s very hard to stop and you’ll both live with the consequences.
Perhaps the biggest problem aggressive divorce litigation causes is that it stokes anger and conflict over issues having nothing to do with your parental or marital property rights that make it even more difficult to reach a settlement. This can create problems where there were none before – that only it can solve – and can make the existing circumstances that cause many divorces such as an imbalance of financial or emotional power or a lack of trust and respect, worse. Your divorce then becomes like a Chinese Finger Trap – and the more you fight, the harder it hangs on and keeps you bound together.
If what went on during your marriage left you hell-bent on “winning your divorce” that is, of course, your choice. But you should know in advance that an aggressively litigated divorce is not a “zero-sum game.” It’s a “degrees of losing” divorce strategy where there are no clear winners and even just prevailing comes with a very high price. What’s ironic about the way divorces play out today is that American family courts used to let divorcing couples act out their angry drama until they either ran out of money or came to their senses and settled. But in recent years with many states facing budget deficits, family court systems are having to tighten their belts and they’re running out of patience with stubborn, angry couples, requiring them to try to settle using divorce mediation first (at least in part) before they show up in court to go before the judge.
Mediation As A Divorce Strategy: Begin With The End In Mind
Divorce Mediation isn’t just focused on dividing your stuff and deciding who “owns” your kids the way attorney-led negotiations are, it’s an environment; a sane, safe place to make plans for your separate futures as 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 especially your children – doesn’t seem to matter in many cases. Mediation is a private and confidential affair, the way 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, cooperative process like mediation is far better place than a rigid, intimidating system that by default views a divorce as something to be “won” or “lost” when making these kinds of decisions.
When conducted properly, divorce mediation isn’t just a faster, cheaper alternative to attorney-led divorce negotiations. A competent, trained divorce mediator assists their clients and teaches 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 couples who use divorce mediation 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.