Mediation

1. Mediation: Getting the Flavor of Mediation

It’s easier to tell them to go to hell than it is to send them there.
—Anonymous

In divorce, there are only two people who have the power to give you what you want: the judge or your spouse. If child custody is an issue, then we must hasten to add that a jury may also grant your wishes. Divorce is not a game of solitaire. The very nature of the beast is having to deal, actively and intensely, with someone whom you want out of your life and/or who wants you out of his or her life. When people who were long ago ready to be rid of each other are forced to continue dealing with each other to decide the terms of their separation, little wonder that this produces huge emotional reactions, deadlock, and frustration. If you are sick to death of your spouse, tired of being lied to, betrayed, deceived, used, abused, and manipulated, the natural, human response is to just say, “I don’t want to talk about it anymore; I’ll just see you in court.” Of course, this is what keeps us lawyers in business.

But, to think that you can avoid dealing with your spouse by simply saying, “see you in court,” is a misunderstanding of your current reality. Yes, you no longer have to sleep with him or her or see your former beloved every day. On the other hand, you have not been elected “Lord of the Realm” and are not entitled to have your every wish come true.

Let me explain.

Settlement and Alternate Dispute Resolution

True, if you choose to have a judge or a jury draw the boundaries that govern your future relationship with your spouse, except for a deposition or two you won’t have to see your “old buddy” face-to-face until you get to court; on the other hand, I can virtually guarantee that you will be “dealing” with him or her in ways that you may not have imagined.

Even if a judge or jury decides to grant your wishes, neither can do so until after you go to court. This means, you get to spend your time, money, energy, and anxiety getting ready for trial. Not to mention the risk. What if a judge or jury doesn’t see the case like you do? This, my dear, whether you like it or not, is called “having to deal with your spouse.” For most normal people it is downright miserable. Some find the tension, worry, and cost associated with the trial preparation process virtually intolerable. And then there are those awful moments of stunned disbelief that you see in people when a judge or jury rules against them. Imagine what it will feel like to lose everything in court while knowing in your heart-of-hearts that you turned down a settlement offer that would have provided you with much of what you wanted. Or, that you lost your case before even investigating what you could obtain by settlement.

The point is: Going through a trial when your spouse gives you no choice is one thing; needlessly going through a trial when there is a viable alternative is quite another. When surgery is required, it’s the vital, sensible, appropriate route to take. When it is not needed or can reasonably be avoided, it becomes a bizarre, senseless risk of life and limb that verges on the criminal. That’s why you must never ignore even the possibility of avoiding a trial. And that is just what mediation is: a possibility of resolving your case without a trial.

Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 14, pp. 203-204.