The two primary methods to divorce are mediation and litigation. It is not uncommon for a divorcing couple to use both mediation and litigation at various times during the process.
Mediation is a process through which parties to a dispute craft their own resolution. The parties sit down with a neutral third party mediator whose job it is to assist the parties in reaching an agreement. Mediation is a voluntary process which means that both parties to the dispute must agree to participate in the mediation process and either party can withdraw at any time. Mediation is also a confidential process and is not part of the public record.
Participants in a mediation can bring friends, family, and business and professional advisors to the mediation with them. The process can be more efficient and more effective if the participants in a mediation are able to consult with their advisors, who may also become part of the process as it proceeds.
Litigation, in contrast, takes place within the confines of the Court system. It takes only one party to initiate litigation, participation for the other party is not voluntary. Some issues, like domestic violence, generally should be litigated and are not appropriate subjects for mediation. At other times, litigation is required when one of the two parties refuses to consent to mediation. A litigated dispute concludes when the Judge makes a ruling regarding the dispute. Both sides are bound by law to accept the Judge’s decree.
To mediate or litigate?
The process of litigation might start out amicably, but since a judge is the person who is making the decisions, each side has a strong incentive to convince the judge that the other side is in the wrong. And so, eventually, in some court filings, a little bomb is dropped by one side. The other party, in an attempt to protect him or herself, naturally strikes back, and quite naturally the conflict escalates. In the end, neither person is likely to end up with the peace and financial security they sought. It’s not that litigators are bad or selfish people. To the contrary, they are normally sincerely interested in protecting their clients. However, the traditional judicial advocacy system is not designed to preserve relationships. It is designed for one-side-takes-all war.
When we look carefully at longstanding conflict, we see that both sides are often engaged in similar internal processes. First, they are disagreeing about something specific - money, custody of a child, possession of artwork, something important to each. Still, they would likely come to resolution if not for the next problem.
Second, and most importantly, injury has taken place. They each see the other as having attacked them in some way (furnishing yet more evidence that the other person doesn’t care about their wellbeing). The disagreement has become personal. Once trust has deteriorated, they are too suspicious to work closely to generate mutually satisfying alternatives. Their negative views are then reinforced by their inability to solve the problem. And so they fight. And they hire lawyers and go to court, spend great sums and intensify the distrust.
My approach is to act as a facilitator who enables the parties to hear the other and understand their basic needs.
The mediation process is quite different. There are many different approaches to mediation. My approach is to act as a facilitator who enables each of the parties to hear the other and understand their basic needs, which motivate their actions and desires. It is my experience that where the parties to a mediation are able to come to a deep understanding of the other’s needs, they are able to reach an agreement that is mutually satisfying. However, asking a person who is either angry or hurt to understand the experience of one who is perceived to have caused him or her discomfort can be both fruitless and insulting. Understanding cannot be forced.
When people who are caught in emotional disputes receive understanding themselves, they are often surprised by what hides just beneath the surface: a desire and ability to authentically understand the experience and impressions of the other. The process does not begin with understanding, it winds up there. It begins simply with a need to be heard and sometimes also a need for clarity—How did the situation come to anger? Why does the other person see things so differently than I do? The process unwinds with hitches and difficulties and ah-ha’s and releases. Often deep understanding is neither the objective nor achievable. But bitterness and blame can almost always be left behind. And relationships can resume with respect, if not outright warmth.
The process does not begin with understanding,
it winds up there.
The benefits to this approach go well beyond preserving respect and warmth in a relationship. First, the solutions found normally endure because they are designed by the parties themselves, with deep understanding of their own needs and the needs of the other. Second, the expense is almost always a small fraction of the cost of litigation. Third, and perhaps most important, the process frees people from the devastating consequences of being consumed by anger and resentment.