The Adversarial Process

Divorces are part of our adversary process. By design, the legal system pits one party against the other. The theory is that the decision-maker (the judge) has the benefit of the most persuasive argument from each side and the attack by cross-examination reveals the weaknesses of each side’s position. Though this may be an effective way to make decisions in commercial and criminal cases, it certainly is not appropriate for the troubled family. It pits husband against wife, mother against father and hostility escalates into the ultimate war, the trial.

 Divorce attorneys are, first and foremost, advocates. They are, by training and duty to their clients hired to "win" the case, to "defeat the other side." The tactics that are used to obtain those results are expensive and destructive.

 Divorce attorneys clearly understand that divorce is as much a psychological war, as it is a legal war. That part of the process called "discovery" gives attorneys the tools with which to attack the opponent and to gain psychological as well as legal advantage. Depositions (examinations before trial) of friends, family and business associates, production of tons of documents, scrutinizing personal activities, and evaluation and criticism of each spouse’s role as parent, are all part of the tactics used to bring your opponent to their knees.

All of that warfare is expensive. Attorney fees vary from one region of the country to the other and from one law firm to another. The fees may exceed $500 per hour. Keep in mind that the fees and costs are for each spouse. When you add the out of pocket costs, filing fees, witness subpoenas, court reporter fees and transcripts fees the cost of the war often exceeds the amount in controversy and wastes hard earned marital assets that can better be used for you and the children.

Your Children Are Watching

Your Children Are Watching

Contrary to public perception, Divorce Attorneys practice in and are subject to a stressful, emotional environment. The longer and more bitter the battle, the bigger the fee. However, if you think that the fault lies solely with the attorneys you are missing the point. You, the client, make it all possible. Clients often urge their attorneys to savage their spouse. It is a way to make them "pay for what they have done." When that is your objective the price that you pay goes beyond dollars. It results in the loss of dignity, self-respect and post divorce impairment of your ability to enter into future relationships. Most importantly be aware that your children are watching. As hostility increases they become the innocent victims of the war. "Mom, why are you so angry at dad? Don’t you know that I love him?" "Dad, why are you so angry at mom? Don’t you know that I love her?"

The Gamble

If that isn’t enough reason to avoid the war, consider the gamble that you face. An attorney cannot safely predict the decision of a judge. In fact, in most divorce cases, both clients leave the process unhappy with the result.

When you allow the case to go to court you give up the right to make decisions about your own life. Before putting decisions about your life into someone else’s hands you need to explore alternative methods of reaching agreement and getting on with your life. Mediators can help you to avoid the war.

Mediation

Mediation is a non-adversarial process in which you, with the assistance of an impartial mediator make decisions that affect your life. The agreement that you arrive at must be acceptable to both parties and the agreement then forms the basis for an uncontested divorce.

Though Divorce mediation is not marriage counseling the question of saving the marriage is often explored. Supervised communication between the spouses sometimes results in a desire to seek counseling to save the marriage. However, the primary objective of divorce mediation is to assist parties who have decided upon divorce get through the process in a less confrontational setting.

Mediation can take place during the divorce suit, before the trial of the case. When it occurs during the divorce process it is referred to as "court ordered" or "court connected" mediation. However, by that time, both parties will probably have paid attorney fees and started the case in the hostile environment of the adversarial process. Couples facing divorce are urged to consider getting the assistance of a family mediator before retaining opposing divorce attorneys.

The mediator is a neutral party who cannot order either of you to do anything. The agreement that is reached must be acceptable to both of you. He or she will help to defuse emotions, and guide both of you through the web of difficult issues. Through extensive training and experience mediators can often suggest creative solutions to problems that the parties may have considered insoluble. They deal with every issue involved in the dissolution of a marriage: Distribution of property and debts, child custody and support issues, spousal support, and assistance in virtually every subject necessary to lead to a complete agreement and uncontested divorce. Instead of airing these personal and often painful subjects in a public arena (the courtroom), you deal with them in the privacy and confidential setting of the mediator’s office. The costs are significantly less than battling it out with opposing divorce attorneys. Most importantly, the process helps the parties avoid destructive battles, which impact upon children of the marriage. It enables you to get on with your life.

Many divorce attorneys are now engaging in this field. They receive special training in skills necessary to help parties avoid contested divorces. Of course, courtroom battles remain the exclusive domain of the divorce lawyer, and if you cannot reach agreement with a mediator, the divorce lawyer is there to help you.