Articles: Mediation Articles

In his book Heat, author Bill Buford goes behind the scenes of celebrity chef Mario Batals three star New York City restaurant Babbo. In this short column, I’ll attempt to take you behind the scenes of family law litigation. Like the restaurant, Babbo, family law litigation is expensive. In fact, you could probably eat at Babbo two or three times a week for a year, wine included, for the price of a family law trial and still have money left over for a gym membership to work off your weight gain. Sure, your spouse may be ordered to pay a portion of your attorney fees and costs, but that money has to come from somewhere.

Forget what you see on television. Those fast paced television trials have no place in family law, where a child custody evaluation can take as long as eight months. Due to crowded court calendars, family law trials rarely proceed day to day. Trials can be spread out over weeks, even months.

The alternative to expensive litigation is mediation. Ironically, the only way people reach a resolution during litigation is when they see that is better than the continuing conflict. In mediation, an experienced mediator will help the parties identify their positions, interests and commonality and delineate the gaps between them, thereby helping them reach a mutaully acceptable agreement. Mediation is also available for post-divorce matters, such as modifying custody, visitation and/or support.

With the cost of mediation about two thirds less than litigation, a successfully mediated divorce or post-divorce matter should leave you with enough money for dinner at Babbo, and your child’s college education.

Like the contestants on the hit ABC television show Dancing with the Stars, it takes two to tango in divorce mediation. This means that parties entering divorce mediation need to have realistic expectations and not throw out the mediation and run to court at the first bump in the road. People don’t resolve cases until they’ve had an opportunity to be heard. That often involves airing emotions that would otherwise be irrelevant and inadmissible in family court. Mediators are not judges. Therefore, parties in mediation should not expect the mediator to dictate a settlement. In fact, the job of a mediator is not to create an agreement, but to work with the parties so they come up with their own agreement.

If parties are unable to accept each other’s position, then a mediator needs to take them down a different path, but at the same time get them to recognize that they are interdependent insofar as reaching an eventual agreement. This often means taking so-called baby steps along the way to a mediated agreement. A mediator should be hard on the problem and soft on the people.

The Navajo Indians recognize that with litigation you normally have a winner and a loser. This outcome usually just starts future conflicts. Even in a high conflict custody case, mediation is possible where the parties will at least acknowledge each other as parents. Conflict can often be an opportunity because most conflicts in family law started with a positive relationship. Dating, getting engaged, the wedding, the honeymoon, the birth of children, buying the first house, and so on. Parties in mediation need to know there is a future beyond the conflict. But, parties must also understand that mediation will not cause a behavioral change in their spouse. The goal is to reach an agreement that deals with who your spouse is, not who you want your spouse to be. After all, isn’t that one of the reasons you are getting divorced in the first place?