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Mediate
or Litigate? Call a lawyer, go to court, see the judge and be
divorced.
Without knowing it, you just chosen litigation as your way to be divorced. Most of us believe that the litigation process is the only way out. We think of divorce court and have vivid memories of parents yelling to the judge at the wrongs of the other parent. Well until about fifty years ago litigation was the only way that you could work through the divorce process absent an agreement. There simply was no other model available that would allow you to resolve your divorce dispute.
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Litigation allowed individuals the right to seek damages for alleged wrongs and to move onward with their lives. Litigation allowed for the end of conflict. Litigation allowed for parties to separate from one another. When divorce cases hit the court house in the late 1960s to early 1970’s court dockets were overloaded with family law cases. To relieve the stress on their dockets mediation was created to reduce overloaded dockets. Mediations ended up being a reduced the flow of cases on court’s dockets. Mediations were so successful that 90% of cases that were to go to trial were settled outside the courtroom. As mediations evolved, mediation practice branched into evaluative, facilitative (problem solving) and face to face mediation styles (or transformative).
If 90% are cases successfully mediate why are you in litigation?
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Well until about fifty years ago litigation
It should be noted that Stu Webb and Curtis J. Romanowski introduced the concept of collaborative divorce in the 1980s. The developments allowed parents the ability to choose to mediate, litigate or opt out of the litigation process and choose to proceed with their very own collaborative divorce. Divorcing parents have options, but which ones to choose?
There is no
automatic right or wrong answer, it can only be answered on a case by case basis.
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Mary and John’s Obituary Married January 2010 Divorced: February 2017
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Mary and John worked hard and saved for retirement.
High school
sweethearts Mary and John planned on raising two kids and had high hopes for their future. As the years went by Mary and John grew apart, both working long hours and spending what little free time they had making sure their kids were involved in sports. Almost twenty years into their marriage, all Mary and John did was fight. Fighting at home led their teenager to seek help with the counselor at school. Mary
THE CHOICE TO LITIGATE OR MEDIATE WILL BE ONE OF THE MOST IMPORTANT DECISIONS YOU WILL EVER MAKE
and John began to think that this was the end. After a few months of marriage counseling of their own the marital counselor saw their differences were too great and far apart. 6
How Should Mary and John get divorced?
THE FIRST STEP John says well there’s one choice, that’s find lawyers and
I just want to see a judge! Many parents will simply want to see the judge at the onset of their divorce.
head to the courthouse. John chooses litigation as his way
Is this a mistake?
to resolve the divorce.
Your long-term goal to separate and move on with your life is going to be effected by our ability to solve the problems that face you in your divorce. If you can’t get through short term conflict studies suggest long term conflict will follow.
Why not just Litigate? 7
Mary and John are done talking, it’s time to file for divorce. Mary’s mom tells her that she better hires an attorney. Mary looks on line and finds a board-certified family law attorney.
Creating the Continental Divide
Based upon the attorney’s advice
Mary files for divorce, obtains a temporary restraining
COURTROOM
order and moves forward with the divorce. Mary follows her attorney’s advice and agrees not to talk to John during
DISCOVERY
the divorce process. Mary alleges fault in the divorce and accuses John of not being able to care for their child.
DEPOSITIONS
Mary files a temporary restraining order keeping John from seeing his kids. Mary tells her family “Enough is enough. John is
Litigation the continental divide –
going to have to suffer for all he has put Mary through during their relationship.”
Mary adds “I don’t want to
talk to John anymore, it is time to have a judge decide and see that I was right about all the bad years I had to endure in this marriage.” The first time that Mary sees John is the first court hearing. Mary’s attorney and John’s attorney seem to be arguing a lot about discovery deadlines and the 8
Separating parents who would otherwise be able to talk to one another and find solutions to their problems.
Are you ready?
appointment of various experts.
Mary moves
forward with the court hearing because she is told by her attorney that its best if the judge hears the evidence and makes appropriate rulings. Mary makes sure that the judge hears from her witnesses who tell the history of John’s bad acts during the marriage. Mary is thankful for her friends for testifying and putting on the best facts that support her claim that John is to blame for the divorce.
Too many times parents start the litigation process unaware of the total cost of litigating their divorce.
Mary is disturbed that John too has a list of all the bad things Mary did during the marriage. Mary sees this as more “fake news” than what really happened. Mary is disheartened that all John seemed to remember was how horrible a parent she was.
Mary is enraged that John
brought his mom to the hearing as John’s mom was nothing but an instigator and trouble maker. Mary and John sit at their counsels table listening to the judge instruct them on the need 9
to work together for the benefit of the children. Mary leaves unhappy, getting some of the financial awards her lawyer promised her, but not getting the custody schedule she though she deserved. Mary and her attorney talk, both agreeing that additional litigation is needed to turn the tide and move John from his position. “Just wait” the divorce lawyer tells Mary “you are going to get the relief you wanted when you first walked in the office, just be patient with the process.” The Court appointed therapist Jim to conduct a child custody evaluation to determine whether Jim or Mary should have custody. Therapist Jim meets with the kids, Jim and Mary. Discussions at home with the kids become tense and Mary becomes
After the last billing statement Mary was told “Just wait…. be patient with the process.”
worried about how the kids are being affected by her and John’s fighting. When the kids ask her about the litigation Mary tells them “I’m sorry kids I can’t talk about
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what happens in court.” Mary tries to call the therapist to talk about problems but is told that Mary’s request is outside of their role as the parents are parties in
KIDS N DIVORCE
litigation. Days turn into weeks, weeks into months. Mary doesn’t understand how John has become so unreasonable and positioned. Mary is brought into her lawyer’s office and answers discovery requests sent to her by her husband’s attorney. Mary asks how she can talk to John about the kid’s needs. Mary is told that she can talk to her husband through an app such as Family Wizard or App Close. Mary is told to watch what she says because the conversations can be used against her in the divorce process. Mary finds that she has no cooperation with
STUDIES SHOW THAT KIDS ARE EFFECTED MORE BY CONFLICT THAN BY THE DIVORCE ITSELF. .
John about issues affect the kids. When Mary tells John about the kids missing homework she is told how bad of a mother she is. John similarly feels that Mary is alienating the kids from her as both of their teenage sons have become disrespectful and impossible to be with.
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Mary is then noticed one day to appear at a deposition. Mary is surprised to see a court reporter and videographer present.
John’s attorney seems more
aggressive than usual and keeps presenting Mary with document after document. Mary’s social media pages seem to be a big interest with John, at least to his attorney. Mary feels that John is constantly calling her a liar, an unfit mother, mentally unstable, the list goes on.
To not be undone, Mary has her attorney schedule a
deposition for John. Mary has John’s lab top inspected and views John’s secret diary. Mary is disgusted with John. At this point Mary gets a call from her credit card company. The outstanding charge on her monthly statement is over $15,000.00. Mary talks to her attorney, how much more will this cost? Mary’s attorney is adamant and says “it’s going to take another $15,000.00 to prepare this case for trial and another $15,000.00 to try the case. Mary’s attorney tells her that it’s possible that this case will settle at mediation if you want to avoid trial. The child custody evaluation did not go the way that Mary had hoped. Mary had wanted John to have supervised visitation, something the child custody evaluation did not recommend.
Worse yet the child custody evaluation
recommended that the parents think of a shared parenting arrangement, something along the lines of 50-50 custody.
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Mary and John go with their lawyers to mediation in different rooms. The mediator listens to
LOSE-LOSE
Mary who starts off with her requests for relief in the divorce. The mediator then goes to John’s room who counters with what his wants are. Mary and John go
Question of the Day:
back and forth with this game of positional ping pong during the day. By this time the mediator is exhausted and comes up with her own mediation proposal. The proposal isn’t something Mary or John created or even want. The attorneys for both parties see the mediator’s proposal as an acceptable solution for Mary and John’s
Did you think before you started the divorce process?
dispute. The mediator chimes in saying “A mediated settlement is better than anything you would otherwise
Litigate or Mediate?
obtain in a courtroom. “Low on funds and wanting the divorce done.
Mary and John finish their litigation at the mediator’s office,
frustrated, low on funds and disappointed with the divorce process. Mary and John’s problem with their kids continue and the boys end up moving in with dad, unable to live by Mary’s rules. A year goes by and John files a new suit to modify the existing orders from the court. Mary and John are shocked when the 13
court demands why these parents cannot follow their own agreement and put their children’s interest first.
Divorcing parents want to fight. But a Court’s not going to say whose wrong and whose right.
John and Mary’s divorce isn’t the exception, it’s the norm. John and Mary put control of their affairs in the hands of third parties. John and Mary believed that the that the Judge would tell them whose wrong and who was right. What’s worse the result, the settlement, wasn’t anything that John or Mary ever wanted.
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The cries to give parents the choice to mediate, litigate or collaborate are being heard louder and louder by professionals who advocate conflict resolution over conflict. How would Mary and John be affected if they choose mediation over litigation?
Benefits of Mediation
MEDIATION LOW COST LESS CONFLICT MORE CONTROL COMMON SENSE
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Problem Solvers in Action Mary looks at John and says, “How are we going to talk to the kids about the divorce?” John replies “I don’t know, I think their suspecting somethings up. I don’t know how they’re going to take it, why not call a psychologist, they may have some ideas on how we handle this.”
Mary calls a psychologist and schedules an 16
appointment. Mary and John meet Dr. Shelley who gives them pointers on how to best address the needs of their children. Dr. Shelley tells them that divorce might be hard on the kids and to avoid unnecessary conflict if possible. After Mary and John leave the psychologist office Mary asks John “Have you thought about how we’re going to get divorce?” John looks at her curiously. “I mean there’s not a lot to talk about Mary. You want what you want, and I want what I want, I don’t see any other option than to bring the lawyers in.” John looks down on the ground and gets ready to walk out the door. Mary goes on, “Hold on John, have you heard about mediation?” John comments drily “never heard of it.” Mary and John look on line and see
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if mediation is a good fit for them Mary tells John to call mediator Matt. “How’d you pick this guy?” John says. “Oh, I heard good things about him from work.” John says, “Okay Mary, let me talk to
The Four C’s of Mediation Lower Cost Less Conflict More Control Common Sense Approach
him.” John schedules a meeting with mediator Matt. “Welcome to mediation.” Matt says. “Mediation is an informal, confidential process. You and Mary will be able to work through issues that you have with my help. Mediation really puts you in control over how you are going to get divorced. Does that sound like something that you want to do?” John looks back “well, we don’t have this figured out and I’m not optimistic, we are really far apart. I talked to an attorney on the phone, it’s going to 18
cost me and Mary at least $10,000.00 to start this process.” Matt looks at John. “John you’ve been married for some time. Would you want to go to court
CHANGE YOUR ENVIRONMENT
and litigate this OR do you think it’s worth a shot to resolve your issues out of court?”” John nods his head.
Benefits
“I don’t know where to start. We have assets, debts
Of
and have kids – I don’t know where to start.” Mediator
Mediation
matt calmly says, “well there’s no harm in talking, have your lawyer call me to clear it OR if you want I can get you and Mary in for a mediation once you both have
LOWER Conflict
filed the petition for divorce.” John asks, “I can do that?” “No problem” mediator matt says.
CALMER Environment
“What are the benefits of mediation anyway?” John asks. “Well think of the benefits as the four c’s
MORE Focus
of mediation. First off mediation offers you a way to be divorced with less conflict and less cost. Mediation allows you to be in control of the process with the added convenience, allowing you to come up with a common-sense approach to resolving the problems your facing.”
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“I’m not sure what to do,” says John. “There are issues with the kids and my family is really wanting me to fight to protect my interests. Saying all that I don’t want the divorce to be awful and hurt our kids.” Mediator matt asks one question “John typically parents don’t have all the answers to their divorce.” “Have you talked to anyone about how to take care of the kids needs during the divorce.?” John says, “Sure we talked to Dr. Shelley, she seemed nice and helpful.” “Mediation is going to take work, John. We are going to work through the issues and see where it takes us. Do you think we should try it?” John agrees adding “I
By not taking adversarial positions, divorcing parents have a better chance to listen, understand and respond to the other parent.
think we’ll go back to the psychologist for some ideas on how we take care of the kids. I’m needing a resource, something that will help me figure things out.” “Sounds like you are on the right path” mediator matt says, “schedule a meeting with me after you and Mary have met with her.”
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John and Mary walk into the mediator room together. “I like what Dr. Shelley had
Mediation provides you a common-sense approach to remain in control of your divorce.
to offer about a shared parenting plan.” John said. “Well sure you did John, but your forgetting their children not some piece of property that bounces between homes.” Mary replies. Mediator Matt asks John and Mary if they want to stay in the same room while the mediation commences. “I’d rather stay in the same room than wonder what John’s thinking, we really need to figure this out.” Mary says. John nods his head. John and Mary sit with mediator matt for the next few hours. At one-point Mary calls Dr. Shelly for some general questions she had. Together John, Mary, mediator matt and Dr. Shelley help come up with an agreement that was in some parts agreed to by joint collaborative effort, and in part agreed to by compromise. 21
Why we Hit the Litigation Button Ninety percent of family law cases that are headed for trial settle at mediation. If mediation was so successful, why didn’t these parents first start off mediating and working through their issues?
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The three main reasons why you hit the litigation button: 1. Fight or Flight: fear of the divorce process, fear of meeting future financial needs, fear of losing parental rights. You can’t run from this problem, fighting seems the best and only option. 2. Anger: enraged at the reasons that caused the divorce. 3. Lack of education: No one told you that mediation was an option.
Litigation: The Easy Answer Google divorce – and you’ll find the term “divorce lawyer.” Only one option, right? It is how you’re your friend got divorced Everybody’s doing it, doing it doing it.
Your Parents said so…
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They are funding the money for it after all, so there you go.
Flight or Fight The fight or flight response is most likely one of the main reasons why people choose to litigate their divorce. Daniel Goldman talked about stress, and the reason why we fall into the path of fight or flight:
“When we’re stressed the part of the brain that takes over, the part that reacts the most, is the circuitry that was originally designed to manage threats— especially circuits that center on the amygdala, which is in the emotional centers of the brain.” 24
FUNCTION OF THE BRAIN
FIGHTING THE FIGHT OR FLIGHT RESPONSE So how do you fight a fight or flight response triggered by your brain? Daniel Goldman, like others, believes that the best way to reduce the flight or fight trigger is to stop, think and assess your situation.
Emotional
intelligence includes
emotional awareness; the ability to harness emotions and the ability to manage emotions.” Can you listen, understand and respond effectively? Your emotional intelligence, or lack
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“The amygdala is the trigger point for the fight, flight, or freeze response. When these circuits perceive a threat, they flood the body with stress hormones that do several things to prepare us for an emergency. Blood shunts away from the organs to the limbs; that’s the fight or flee. But the response is also cognitive—and, in modern life this is what matters most, it makes some shifts in how the mind functions. Attention tends to fixate on the thing that is bothering us, that’s stressing us, that we’re worried about, that’s upsetting, frustrating, or angering us. That means that we don’t have as much attentional capacity left for whatever it is we’re supposed to be doing or want to be doing.”
thereof, is going to direct you towards litigation or electing mediation.
MOVE PAST ANGER Part of my practice is helping address the needs of kids affected by divorce. In 2017 my firm created divorce boot camp class for divorcing parents in San Antonio, Texas. The class was to help these parents understand the effects that the divorce had on their children. The purpose of the class was to help parents focus on working through the problems they faced. After several classes it became clear that the parents did not understand what exactly they were in court for. The parents were not educated on the basics of parenting plans, the statutory assumptions in Texas for parental rights and duties. The parents simply understood that court was the place to fight, the place to explain who was right and who was wrong. In court I see anger as the parent’s ammunition and litigation as the gun. The two-work perfect to create chaos during the divorce process. That is not to say that you should not be angry about your divorce. You have the right to feel any way you
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want to.
The question is should you use anger to direct the way your divorce
proceeds.
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ANGER HAS ITS PLACE Anger has its place in divorce. Divorce is just as much an emotional process as it is anything else. Divorce in fact is of the most traumatic events you will go through whether you wanted the marriage to truly end. To me there is a reason that cases begin in litigation and end in mediation. The reason may be as simple as transitioning through the stages of grief. The 5 stages of grief and loss are: 1. Denial and isolation; 2. Anger; 3. Bargaining; 4. Depression; 5. Acceptance.
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BUT NOT AT THE COURTHOUSE
Ninety nine percent of the time anger will be your worst enemy at the courthouse. Family law court’s have been saturated with angry litigants who come to court to express their anger at one another. Many litigants walk out of the courthouse disappointed that the court focus was more on the best interest of the children, for example, than on the complaints of separating spouses. 29
THE BENEFITS OF DISCERNMENT COUNSELING
Do you want to stay married OR does the marriage need to end? Going through a divorce is mentally taxing. Can you go through the divorce process need to be made that will affect your children and your future financial affairs?
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Discernment counseling offers you the ability to sit down and talk things through.
MOVING PAST LITIGATION TO MEDIATION Is this marriage worth saving or does it need to end?
If we could divorce by any other name, we would call it conflict. But here’s the rub. If we’re going to talk conflict, we need to talk conflict management. Truth be told there are five different ways that we can resolve conflict, whether it be by competing, collaborating, compromising, avoiding or accommodating. Conflict can mean going to war and engaging in acts of destruction just as much as it means problem solving and reaching amicable settlement of the issues at hand. 31
When you think about conflict resolution most of us think about an individual’s personality. Research has shown that our assumptions are incorrect. Some people naturally compete in given environments and collaborate in others. Conflict styles can change and evolve. As our understanding of conflict management evolves so does our understanding that a divorce can be undertaken without the need for litigation.
THE AMERICAN BAR ASSOCIATION AGREES 32
The American Bar Association published a report from a mediation task force in June of 2017. The 2017 study researched mediation techniques that The ABA report specifically reported
Mediations are successful when the mediator 1.
2. 3
elicit disputants’ suggestions or solutions; gives more attention to disputants’ emotions, relationship, and sources of conflict; works to build trust and rapport,
MEDIATION SHOULD HELP PARENTS LISTEN, RESPOND AND UNDERSTAND ONE ANOTHER.
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