THE TROUBLE WITH LAWYERS: HOW TO SAVE TIME, MONEY AND GRIEF BY MEDIATION DIVORCE

When a husband or wife, or both, decide to get a divorce, the first impulse of both may be to retain a divorce lawyer to file a divorce case. This will set in motion a course of events which will be difficult to stop, and which will cause them a long period of expensive, grueling, and unnecessary conflict.

The civil litigation system is well suited to resolution of certain disputes: personal injury cases, contractual disputes, and other cases which are only about money. It does not work so well when the parties need to maintain an ongoing relationship, as do divorcing parents. Even when there are no children, divorce court is not a good place to terminate a marriage.

A divorce lawyer who files a law suit on behalf of his/her client, thereby undertakes the duty of "zealous advocacy" to promote and protect the interest of that client. Inevitably, this requires the divorce attorney to do things that are likely to anger, and often damage the other party, and sometimes also the children. Aggressive moves by the divorce attorney and his/her client will be met by similar moves by the other spouse and divorce attorney, thereby causing escalation of the conflict.

The divorce courts of Southern California are very overburdened by a heavy load of cases. A family law judge may have anywhere between 20 or even 40 cases on calendar for one morning. Thus, the amount of time the judge can devote to any one case is minimal. The divorce attorney must make the best use of this time by advocating vigorously on behalf of his/her client, to the detriment of the other spouse. Even if the divorce attorneys are ordered by the judge to negotiate a settlement of the pending issues, there is none of the deliberate evaluation of underlying interests to work cooperatively toward agreement, as would happen in a mediation.

Litigation is a fight, and the divorce lawyer and the client make up a team, who work together to collect information, prepare declarations, go to court, elicit testimony, take discovery to find documents, etc., all in the cause of advancing the team's prospects for winning out over the other team ( the other spouse and his/her attorney). It is easy to begin to think of the other team of divorce attorney and client as the enemy. The thin veneer of cooperation that a divorcing couple may have at the beginning when they often mutually decide to divorce, can be broken, and underlying animosities come through and are exacerbated by the litigation system.

The unsuitability of the litigation system for resolving divorce issues has been recognized by family law judges, causing them to promote mediation or other ways to resolution issues outside of court. See the letter from the Supervising Judge of the Los Angeles Superior Court Family Law Section on this web site, www.mediationdivorce.net. Conscientious divorce attorneys have also recognized the defects in the divorce litigation system. See www.divorcefromhell.com and www.divorceinfo.com.

If the spouses initially go to a divorce mediator rather than each going to a divorce attorney, they can work in an amicable, productive way, spending their time, money and energy resolving the issues in a way that is at least acceptable to both parties. In mediation the parties control the results, unlike in divorce court where the judge makes the decisions which the parties must then comply with. Instead of having each divorce attorney argue for 5 to 15 minutes in front of the judge, who then makes a decision, which may be a bad one, perhaps for both parties, instead the spouses sit down with a mediator and take as much time as is necessary to arrive at decisions that are acceptable to both.

It is often said that the spouses are the true "experts" regarding their family and their marriage. Unfortunately, in divorce courts, in the helter-skelter of dealing with the onrush of cases, decisions are based on the expertise of the judge, or of a social worker appointed by the judge to make an evaluation. Sometimes the judge appoints a third attorney to argue on behalf of the children. The divorce attorneys may contest and cross-examine experts in a battle to prove one side right and the other side wrong, all in an atmosphere of conflict and negative emotions.

Some spouses will go to a divorce attorney in the vain hope that they can wreak vengeance of the other party. This is unrealistic. See Why You Won't Get Even in Divorce Court, which is on this web site www.mediationdivorce.net. Since divorce in California is No-Fault, the bad behavior of one of the spouses which precipitated the divorce is simply irrelevant, except insofar as it may affect the raising of children. There is no "getting even" in divorce court. There is only an increase in the level of rancor, and the difficulty of eventually getting back to amicable relationship that is necessary for raising the children.