Monday, August 3, 2015
More than 20 years ago I reached the conclusion that the litigation model is not particularly well suited to dealing with one of the most difficult and traumatic times for people. During a divorce, people are often dealing with every major aspect of their life while going through divorce. The problem however is that there are many people vying for the judge's time and energy. In turn the judge has very little time to hear and fully understand the litigant's situation. The pace and timing of the client's divorce is guided by the court's schedule and judge's availability. This often leads to long delays. There is also very little predictability when going to court. How a case turns out may very well depend on who is the judge, who the lawyers are, the particular relationship between the lawyers and a host of other factors which are outside of the client's control. Secondly, litigating a divorce, particularly for clients who are middle class or low income, is extremely expensive. Most lawyers require significant retainers to commence the case. One trip to court can use up a significant chunk of the retainer.
Typically, clients appear in court with many other litigants and spend several hours waiting to see the judge. Mediation is much more efficient and much less expensive. Litigation encourages more animosity and less communication. The contested divorce will undoubtedly involve attempts to discredit the other party. Particularly when there are children involved, the litigation system can have a devastating impact on the children as a result of the winner take all attitude. Unfortunately there is rarely a winner. Usually, everyone loses, including the children. Mediation encourages communication, cooperation and listening. Mediation focuses on brainstorming of ideas for mutual gain rather than destruction of the other person. Mediation highlights the fact that the two participants will remain connected for the rest of their lives through their children and thus must find a way to continue to work with each other in an effective and respectful manner. Unlike litigation, mediations occur behind closed doors and are not open for the public to see.