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I Hurt…Why Mediate Instead of Litigate?

     Kathleen G. Johnson, JD

        It seems hard to envision that anyone would go into a marriage with the idea that it is going to fail, however the reality is that some marriages do fail.  When going through the trauma of the split of a marriage and relationship, parties often look to the other party to blame.

            Although there are times that this blame may seem reasonable, the truth is that there are often little things done on both sides that had occurred previously and helped the marriage to break apart.  However, for the benefit of the health of both parties  (and even more so if there are children involved) , the parties have to avoid a concentration on who was at fault, (even if the fault was actually only due to the actions of one), and to concentrate on the future and basics of how all of the parties are going to live after the split.

            I will never forget a scene from “City Slickers”.  One of the parties was looking toward a divorce (which he did not want), and Billy Crystal told him something like this.

“Remember when we were kids and were playing a game with a ball.  When someone had thrown the ball poorly, very often he or she asked for a ‘do over’.   Well that’s what you are getting, a ‘do over’”. 

           I often utilize that analogy with my clients (once they are able to appreciate what we are doing!)  This is a concept that is particularly important for both parties to accept when one party is ready for the divorce, and the other is not yet.  However, this has to be approached extremely carefully.

           In order to get ready for the divorce, both parties have to accept the fact that the marriage simply did not work, have the emotions diffused, as well as the guilt and blame, and move on.   The most successful mediations are those in which the parties are ready, willing and able to move on.  It is part of the duties of a good mediator to help the parties get to that point and it is truly a laudable goal to achieve in the mediation.

           North Carolina focuses the obtainment of the divorce (grounds) on a one-year separation.  This really alleviates the need for either party to look to fault, or to have to blame the other party just to have grounds for a divorce.  North Carolina’s Courts System frequently utilizes mediation.  A divorce in North Carolina will likely require Family Financial Mediation and/or Child Custody Mediation.

            The beauty of a mediated divorce rather than a litigated divorce is that with mediation, the emphasis is on the future.  A successful mediation should concentrate on how the individuals are going to live after the divorce and try to help the parties get away from the hurt, natural tendency for retribution, and onto a plan for the future.   

            The plan devised may require alimony and/or support.  If this matter was litigated, then naturally, fault could clearly have a bearing.  However, in mediation, we are looking further than that.  We are looking to a party’s need and/or ability to pay.  For a successful mediation, there has to be total disclosure by both parties.  What is revealed in the mediation will be the basis for the Memorandum of Understanding (agreement) that is reached between the parties.  If either party does not reveal the full truth, the mediation simply will not work.  (And, if in fact one party did actually hold back an important bit of information during the mediation, the agreement reached in the mediation can prove totally useless.)   Accordingly, an intentional omission by one of the parties can lead right to a vigorously conducted and emotional litigation in which the very thing that the non-disclosing party was trying to protect is actually lost to them.

            In mediation, the parties can always get independent legal advise, in fact there are times that, sensing an inequality or unfairness, this may be suggested.  It must be remembered that even if the mediator is an attorney, he or she is wearing his or her mediator hat only, and although general tendencies in law can be discussed, the mediator does not, nor can they represent either party.  When there are questions that either party has in the mediation that can not be fully answered without providing legal advise, an independent legal opinion is needed.

            A divorce that has been successfully mediated, avoids a scenario that occurs all too frequently.  Probably most of us have been at some type of gathering where you had to make sure that “?” and “?”  (former spouses) were always in separate rooms.  The animosity between the parties would usually prove particularly difficult not only for their children, but in fact for all at the gathering.  When a divorce is mediated, and the parties have learned to concentrate on the future, this need not be the case. 

            As a prior practicing attorney (I am dealing with Mediation and Arbitration only now),  I have seen far too many bitterly contested divorces, in which there really were no winners, and the monies the parties had accrued during the marriage had been severely and negatively impacted by the expensive litigation. When emotions are so high (and the length of most litigated divorces usually increases the emotions present), there have been times I have seen the parties end up paying thousands of dollars in legal fees and costs to resolve who would get a $35.00 painting.

           From extensive experience, I feel very strongly that a mediated divorce is in the best interests of most parties.  (Unfortunately, there are situations when a divorce is not appropriate for mediation.  This can usually be seen right in the beginning)    A mediated divorce is generally much less expensive, but not only financially, it is less expensive in terms of time (it usually is much faster) and emotions as well.