MEDIATION:  QUICKER?  EASIER?  CHEAPER?

By Michael Levine

     I got a lot of calls from people who were beginning their separation/divorce and somehow got the impression that this was a quick, easy, and cheap alternative to using a lawyer and getting into an adversarial war.  I don’t think I gave that impression, but since some of you saw it that way, I guess it would be a good idea to clear up those few words: “quick, easy, cheap alternative”.  

     Of those four words, the only one that I see as being truly operative is “alternative”.  Mediation is the alternative to going to a lawyer, making your separation adversarial, and possibly letting a judge decide your fate.  So let’s check out those other three words.

     QUICK?  While mediation is almost always a faster process than using attorneys, I wouldn’t classify it as a “quick” process.  Sometimes we see a couple that has pretty much worked out all their differences, walks in with minimal animosity, and has agreed on most issues: property division, support, who’s going to pay which bills, etc.  These mediations can usually be wrapped up in 2-3 sessions.  My associate, Paul Nathan, refers to these as the “jiffy lube mediations”!  Where things start getting drawn out is with budgeting, parenting arrangements (child support and visitation), division of complex pension plans, and when emotions come into play and get the parties off track.  The mediator’s job is to try to keep the parties focused, but sometimes there needs to be a little detour for “venting” before getting back to the real issues.

     EASY?  Yes and no.  Those jiffy lube separations are significantly easier using a mediator than going the traditional lawyer route, but those are not the norm.  And even with those folks who think they have worked everything out before they come to see us, we usually find that there are many issues that have not been addressed.  The most common thing overlooked is the future.   Most couples who work things out on their own see only the here and now and neglect how their decisions will affect them five or ten years down the road.  This is especially important when children are involved or a house will be sold or the proceeds of a retirement plan have to be evaluated.  But in most cases the really HARD part of mediation is just sitting in the same room trying to work out a fair and equitable settlement.  Emotionally, this is almost like planning for a funeral – a marriage has died!  And no matter how civilized the couple wants or tries to be, this is a difficult thing to put yourself through.  The flip side of this coin is that sometimes it is easier to just let attorneys do all the work.  Some couples just have too much anger and/or pain to sit together in the same room and discuss what they consider fair, which is probably very different from what their spouse considers fair!

     CHEAP?  Less expensive is a better way of describing it.  The cost of mediation compared to using attorneys is probably 20-40%.  Therefore, the more complex the divorce, the more you might be able to save.  

     Just keep in mind that the real advantage to mediation is that YOU are making the decisions as to what is fair – not the lawyers, not the judge! You!

Mediation: A Positive Alternative in Divorce

By Paul Nathan

    As a divorce lawyer turned mediator, I have advice for separating and divorcing couples based on one simple premise:  YOU DON’T HAVE TO FIGHT TO GET YOUR FAIR SHARE!

    There really are such things as positive divorces.  That is, when the separation and divorce process is over you come through it with your bankbook, your sanity, and your children intact.

    I am not implying that divorce is good, but for couples that have chosen this path, divorce does not have to be a war.  If you use some common sense, you CAN come out of this process with good feelings about yourself and, if you want them, about your son-to-be former partner.

    One of the first things you need to do is to explore the possibility of mediating your separation/divorce.  It is much safer to have a third party coaching you through a difficult time, helping to diffuse anger, and just as important, staying objective.  Even intelligent, educated people have difficulty talking one on one in this type of situation.  You are carving up part of your life!  But in mediation YOU make the decisions that affect your life – you don’t have to leave it in the hands of the lawyers or the judge.  The mediator’s job is to help you look for alternatives and keep you on track.  It’s a safe place to talk.

    In 22 years of doing divorce law, I have found that much of the divorce process is practical, not legal.  For example, you decide what kind of parenting arrangements you both want, whose policy offers better health insurance for the children, when the stocks should be sold.  Very often there is no “right” answer, just the best you can come up with under the circumstances.

    If two people are willing to sit down and talk, even if you don’t like each other right now, you can keep the fighting, the hurt, and the financial burden to a minimum.  Divorce costs are often astronomical because people let their emotions or their greed get the better of them (and their bank account).

Mediation is designed for win/win. That is, by working together you can reach outcomes that benefit both of you, as well as your children.  Sometimes that comes out as letting go of an item you don’t want to get one that you do. Sometimes it’s sharing the car for five months until you can afford to buy another.

    IT IS THE CONFLICT THAT MOST OFTEN SCREWS THE KIDS UP – NOT THE DIVORCE!

A mediator can assist in separating the “husband and wife” problems from the parenting (custody) problems.  Just because you are mad at your spouse because money was taken out of the bank account without telling you, don’t bring the kids over late to punish him/her.  IT’S NOT FAIR TO THE KIDS!  Remember no one OWNS kids.  They still have the right to be with both parents.  The point I’m stressing is that kids can do O.K. if parents who are separating would look for ways to cooperate with one another.  

    I know that in some cases it is hard not to want to flush your mate down the toilet. Really Hard!  However, in most cases, parents could work things out if they don’t choose up sides – each getting a lawyer and slugging it out.  There are really no “sides” in a divorce, especially if there are children involved.  Keep in mind that you are role models for your children’s future and it makes more sense to focus on self-respect and dignity.  Joint custody is a good example.

    There is a lot of misunderstanding about joint custody, but it can be whatever you, as a family, want it to be.  You can agree on joint decision-making and still have the children living full-time with either Mom or Dad.  Joint custody does not have to be one week here, one week there.  I have seen cases where the children have stayed in the house and the PARENTS switched!  The point is that you, as parents, get to decide -- you can both stay involved

    Now let’s move on and talk about property. There is no requirement that you have to divide up everything dollar for dollar.  I worked with a couple where the husband wanted the $8,000 antique car and the wife wanted the $5,000 silver set.  They chose not to exchange money to “even the trade” because it wasn’t about money.  Each was happy with what they received.  As long as THEY felt the trade was fair, IT WAS!  Why?  Because they are the ones who have to live with it.  Not the lawyers, not the judges.  Judges will accept your Agreements, worked out in mediation, if they are reasonably fair to all parties.

     In mediation we don’t look for blame, we look for solutions.  I have known couples where one partner had sex outside the marriage (adultery).  The other partner could have nailed that spouse to the courthouse wall, but the parties CHOSE to mediate their separation rather than go into battle over it.  They were able to see that if they got into a court fight, they would be spending their children’s college money -- and the “family” would lose.  Being “right” can put you into the poorhouse and it can take years to get over the emotional scars of a court battle.  Remember, you still have to deal with each other after you leave the courtroom!

     In closing, what I’m suggesting is, if you are going to get a separation or divorce, you DO have a choice.  You can make it a peace talk or World War Three!  Look at the advantages of not making anyone “wrong”, of just getting on with your lives.  Go for win/win.  You deserve it and your children will thank you.