I mean no disrespect to family court judges, but if you’re getting divorced and you choose to litigate your case, you’re allowing a well-meaning stranger to decide your fate.
Litigation is not always the best course
The judge assigned to your case is not going to get to know you as a person. The judge is not going to come out to your house and watch you interact with your kids, or walk through each room and make an inventory of your property. The judge is not going to let you get on the witness stand and give a long, angry speech about every offense your spouse has committed over the past 20 years. He or she is simply going to take testimony and review documents on the issues you and your spouse can’t resolve voluntarily, and then hand down a decision that will probably disappoint both of you.
Nowadays, judges are under pressure to manage their cases efficiently, which often means getting them completed with only the bare minimum of trial time. As a lawyer, I rarely, if ever, saw a judge cut corners so severely that crucialtestimony was disallowed. But I heard numerous divorce litigants express their frustration that they didn’t get to tell their story completely, or that the judge never really understood the facts of their particular case. The truth is, the litigation process, for all its merits, is not well-suited to family law.
Mediation is an alternative to litigation
Fortunately, there is a cost-effective and widely available substitute for divorce litigation: mediation. Mediation allows the parties (the husband and wife), with the help of a neutral third person (the mediator), to come up with settlement terms that are individualized to their particular needs and circumstances. Unless the mediated agreement is contrary to the welfare of any children involved, or attempts to circumvent child-support guidelines, or was the result of fraud or intimidation, the court will normally approve it. (And an experienced mediator will almost always know when a proposed agreement won’t pass judicial muster).
Mediation can allow for sentiment and creativity
Mediation can produce results that may make perfect sense to the parties, but which a judge probably wouldn’t order. For example, a wife in a short-term marriage may not be entitled to alimony under the laws of her state. But in mediation her husband might voluntarily offer to pay alimony in return for her dropping any claim on a vacation house they purchased together — a house that he may want to have as his retirement home. Or the parties may agree to divide furniture and other personal property in a way that reflects sentimental value rather than monetary value. Or they may agree to leave each of their pension plans intact, but give a bigger share of the bank accounts to the spouse with the smaller pension.
In general, judges are not going to painstakingly construct a decision that somehow balances sentimental value versus monetary value, or which tries to anticipate the parties’ long-term needs and interests. In many cases, if the parties can’t agree on the disposition of some asset, the judge will simply order it sold and split 50-50. That may be fair, but it may not be desirable. Fifty percent of the value of a 10-year-old car may be negligible, but the car itself may be a lifesaver for the spouse who needs it to get to work.
Mediation helps parties agree
Mediation is valuable not just because of the product (the agreement), but also because of the process. The parties start getting into the habit of agreeing — perhaps for the first time in years. Those agreements will pave the way for further agreements in the future, which is vital when there are kids involved. And the habit of agreeing may even stop the divorce in its tracks. I’ve seen more than one couple who were so delighted that they could talk without screaming at each other, that they put the mediation on hold and focused on saving their marriage.
But even if a divorce goes through after mediation, it will be a divorce grounded in civility and mutual respect. And it will be one less case for the judge to manage, one less disappointing decision for him or her to write.