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Mediation or Litigation?

The truth about divorce mediation

Not talking

The myth
A recent trend of the divorce industry is encouragement of mediation rather than adversarial procedures. Mediators like to paint a rosy picture of the divorce plaintiff and defendant working in cooperation with each other to decide for themselves what is best for their kids, and avoiding the long, painful, and expensive process of courtroom litigation. (Cathy Meyer's article about mediation previously was very positive about it, but now is updated to discuss the disadvantages as well.)

The word “mediation” has a feel-good aspect and it sounds like “consultation”, so people like the idea.

Don't believe it.

The reality
Mediators get paid more or less the same as lawyers and often are lawyers. They are likely to need just as many hours to complete the case. They are not neutral and always take the side of the plaintiff, with the goal of getting the defendant to settle out of court as quickly as possible. Their job is not to help preserve marriages, it is to destroy them as quickly and efficiently as possible. As Judith Wallerstein points out in "The Unexpected Legacy of Divorce": The mediator is not an independent agent. He or she operates within the legal framework of the court and in the shadow of its policies." For now, that means that mediators are required to support unilateral No-Fault divorce and to not oppose or criticize adultery.

Judy Parejko, author of Stolen Vows, is a former divorce mediator who paints an even more stark picture of the true nature of divorce mediation. “My own work in divorce mediation had dwindled as I'd become increasingly disenchanted with the court system's legal underpinnings, directing how the divorce process was to play out. There seemed to be little concern about whether a couple had tried to salvage the marriage – whether they have even tried counseling before filing for divorce.” … “I had also become sensitized to the injustice inherent in my role as a divorce mediator.” Aware of the horrible damage that divorce does to children, she courageously tried to help families and help children, and was locked out of her office by the state of Wisconsin because of it.

Wallerstein also points out the other big problem of mediation: they can only help divorcing parents who are on such good terms that they probably don't need mediation (and perhaps should not be divorcing in the first place). In her words, "The moral dilemma is that many people divorce because they have come to abhor the lifestyle and values of their partner. They leave because they don't want their children to be subjected to the toxic influences of the other. Men and women alike leave marriages because of their partner's dishonesty, manipulative relations, violent behavior, drinking, infidelity, or overall irresponsibility. They divorce for serious reasons to escape a delinquent or demeaning life only to find themselves in a system that reinstates and even strengthens the values and lifestyle they fled from."

A long, bitter custody trial conducted between two attack-dog lawyers of course is far worse than mediation. But the reality is that most custody cases don't go to full trial and can be settled out of court between the lawyers of the two parties. For all the faults of divorce lawyers, at least you know who each lawyer is working for and there is some openness in the process.

Mediation might be a good option for some, but for people who are victims of unilateral No-Fault divorce by spouses who want to live with somebody else, a good lawyer is much better than mediation. "Good" does not mean expensive or extremely aggressive, it means one who will give your case the priority that it deserves, one whose fees are in line with the complication and size of your case, and one who will be willing and able to negotiate when the time comes. When the divorce papers are served to you and you need to look for a lawyer, you will likely want to find a very aggressive one who will "punish" your spouse – but that would be a mistake. The selection of a divorce lawyer should be rational not in anger.

My experiences
My own experiences might help to give guidance to others. In my state, all divorcing spouses are required to hire a mediator for at least one session. We picked the one who was closest to us. This session was very bitter and angry. The mediator – far from being neutral – was 100% on the side of my wife, the plaintiff, since both of them had the purpose of ending the marriage quickly and efficiently. The mediator applied very strong pressure for me to accept 50-50 joint custody despite many positive reasons why it was in the chldren's interest for me to have primary custody. The mediator arrogantly claimed to understand the interests of our children – and children in general – much better than the parents. At the end of the required one hour, my wife was crying and I was very angry, and the mediator was angry with me. We walked out, after each writing the mediator a check for $100.

Our courtroom adversarial process, on the other hand, was much easier and more productive than the mediation. We only needed one short pretrial hearing, with my lawyer, her lawyer,and a court official (not quite a judge). Our two lawyers were much more reasonable people than the mediator had been, and negotiated based on what each side would be likely to get in a full trial. Her lawyer understand that she would have a difficult time winning primary custody due to many reasons such as having already moved out of the house some months before. Within just 25 minutes, we had an official agreement whereby I had 60%-40% primary custody, spelling out the schedule, holiday, etc.


So – skip the mediation or just sit through the minimum required by law, but have a reasonable and effective lawyer.