"Nice People at Their Worst": Divorce Litigation and How to Avoid It by Mediation

There is an old saying among lawyers: in a criminal case you see bad people at their best; in a divorce case you see nice people at their worst.

Caught up in the battles, in and out of the courtroom, between the team of husband and his attorney verses the team of wife and her attorney, both spouses can start to behave in a way that is seen as scheming, unreasonable, selfish, or worse. The divorce attorneys, combatants by training and inclination, duel vigorously. Each spends his/her time and effort to protect his/her client and to wear down the other party.

The fight can ensue with one spouse's process server [or a Sheriff's deputy] confronting the other party with papers, saying "you are served." Maybe junior answers the door and calls to other party, "Dad [or Mom], there's a man here to see you."

One of the things to fight about is parenting time with the kids, especially since more time with the kids means lower child support payments to the other party. And getting the kids on your side is a temptation, even though boilerplate orders from the court prohibit badmouthing the other party, using the kids as messengers, etc.

As the months of litigation drag into years, bitterness and resentment builds, children are damaged, and savings are drained. One Los Angeles Superior Court family law judge recently said that at the end of these cases, the parties were only arguing about dividing the debt, since the assets have been used up on attorneys’ fees and costs.

If there are minor children, the spouses are required to meet one time for an hour or two with a court mediator. If the spouses are able to agree at the end of that session, the mediator puts the agreement in writing, they sign it, and it goes to the Judge who will incorporate it into a temporary order regarding custody and visitation. The court also will provide a judicial officer or volunteer attorney to mediate all issues at a brief Mandatory Settlement Conference just before the date set for trial. Otherwise, the court does not have the wherewithal to provide negotiation services to the parties.

Preoccupied with the contest, the spouses [and their lawyers] never sit down together to plan for the future or attempt to negotiate solutions that would be mutually beneficial for side by side interest based negotiations. See Getting to YES, Negotiating Agreement Without Giving In, by Roger Fisher and William Ury (1981). Instead, some litigation attorneys will caution their client not to talk to the spouse about any issue in the case, which could undermine the litigation strategy.

To get a divorce, a petition must be filed in the family court, which is the only place where the dissolution judgment can be obtained. But, aside from insuring adequate child support, and protecting against domestic violence, the court is not required to decide all of the dissolution issues. Rather, the court is happy to have problems resolved by the parties themselves. In a letter distributed to all parties by the Los Angeles Superior Court Family Law Supervising Judge [See www.Divorcemediation.net, Letter from Family Law Court], the parties are advised that there are other ways to resolve their disputes than in court. The letter recommends these "other ways", such as mediation or collaborative law, as having the following advantages for the spouses:1) direct participation in solutions, 2) resolution sooner, 3) lower expense, 4) preservation of relationship with spouse, 5) less stress for both spouses.

Parties that do decide to go to mediation have an opportunity to negotiate in a calm, non-adversarial environment, de-fusing negative emotions. Instead of spending money and effort to defeat the other party, the two spouses sit down together with the mediator to address issues and search for creative and mutually acceptable solutions.

A divorce may be likened to a journey through a strange country. If the route chosen is mediation, the journey will be inexpensive, minimally unpleasant, and brief [usually completed quickly enough so the divorce can be entered immediately upon running of the six-month waiting period]. Best of all, the decisions will be made by the spouses themselves, not by a judge or commissioner.

If the route chosen is litigation with each spouse represented by his/her own lawyer, as described above, the journey will be long and stressful, expensive and largely out of the control of the spouses.

The traveler would be wise to choose the route carefully.