People who are going through a separation or a divorce are often frustrated with the emotional and financial cost of the divorce process. They seek a fair and cost-effective solution that will enable them to get closure. At the same time they want to ensure that someone will adequately address their concerns. The initial choice of process in their family dispute will often determine its outcome.
As Leo Tolstoy remarked in the opening sentence of his novel, Anna Karenina, “Happy families are all alike; every unhappy family is unhappy in its own way.” In my office, we take that statement to heart.
During my initial meeting with a potential client I try my best to understand in depth the unique emotional and financial issues facing my client and his/her family. We then discuss the choices of an appropriate process in view of that client’s unique family circumstances and unique family dynamic.
- Are family members able to have a conversation while they sit in the same room?
- Is there a history of physical or verbal abuse?
- Is there a power imbalance?
- What is the level of education or sophistication of the partners when it comes to family finances?
- What is the level of the case’s complexity? Parenting disputes, Mental Health issues, Businesses, Pensions, Homes, Degrees, Debts, etc.
- What are the financial circumstances of the parties and how much money can the parties afford to allocate to their divorce or separation process?
In the ideal situation, family divorce mediation should always be the first option for separating or divorcing couples. In mediation, an experienced, well-trained neutral mediator helps facilitate a conversation between the parties and, through a series of sessions, helps them reach an agreement which works for their family in a unique way. The partners to a dispute are much more likely to comply with a mediated agreement, which they themselves have negotiated with each other, taking into consideration the unique needs of their family. The statistics on compliance with court verdicts and even settlement agreements reached in court are not nearly as positive.
However, mediation is not a panacea for every family dispute. Sometimes the parties cannot even conceive of coexisting in the same room during negotiations. Even if they can handle it, they may feel that each of them needs a firm ally, – someone who can advocate for them during the negotiation process. They can use lawyers during mediation, but want someone who would actively represent them during each and every negotiation. For those parties, the collaborative divorce process may be more appropriate than the mediation process. I will address the details of the collaborative law process in a different blog..
And then again there are other times when the parties are not able to sit in the same room and can’t even stand looking at each other. Of course in those circumstances probably neither collaborative divorce nor mediation will work, at least not in the beginning. In such circumstances the traditional divorce process is appropriate, with lawyer-to-lawyer negotiation, if possible, or immediate commencement of a lawsuit.
Although mediation is not a cure-all for every case, in 95% of the cases that I see in my office it should at least be attempted. Even when the parties’ first mediation session consists of screaming at each other, it does not necessarily mean that the mediation process would not ultimately succeed. During the alternative dispute resolution process the spouses actually learn how to communicate with each other and they carry this knowledge to their future. At the end of the day their relationship and the way it affects those they love is transformed, and they are better equipped to go on with their lives and effectively co-parent their children post-divorce.