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The New Divorce


What is the first thing you think of when you hear the word “divorce?”
“Fight!” “Hire a divorce lawyer.”

Kim Kardashian, Katy Perry and Heidi Klum come to mind. We’ve all heard the horror stories from friends, newspapers, blogs and tabloids. The typical divorce can be a nightmare, and everybody loses. Except, maybe, the divorce attorneys, who get paid for their time while divorcing couples fight over money, houses and children.

This is the way it’s been ever since the founding of our country, when we imported the British legal model for divorce – the adversarial system. Now that one in every two marriages in this country ends in divorce, the devastation caused by the system has come under question. Divorcing clients often ask me as a New York Divorce attorney, “Is there a better way?”

My answer is, “ Yes.” It’s called “Divorce Mediation.” New on the radar for the last few years, it is now becoming more widely known. It was previously employed in labor negotiations, but its use has been expanding to include family law problems.

Here’s how divorce mediation works: The divorcing couple hires one individual, instead of two opposing divorce lawyers, to help them resolve their differences. The divorce mediator is an independent, unbiased individual, trained in mediation (usually a lawyer or a mental health professional), whose job is to facilitate an agreement on all issues between the husband and wife. The results are astonishing, and are achieved often in hours and weeks, instead of months and years.
How does this happen? The answer is in the process, and in the skills of the divorce mediator, which include a good knowledge of negotiating, creative problem-solving, and psychology. What happens when divorcing couple’s use the traditional adversarial system? Each spouse hires a divorce lawyer, often paying from $5000 to $ 25,000 as an initial retainer for each gladiator. This down payment will be used up at the rate of from $150 to over $700 per hour, for the lawyers’ time, depending on the location (state, city), and the expertise and reputation of the lawyer.

Since it is the divorce lawyer’s job to represent a client “zealously” within the bounds of the law, the divorce attorneys usually embark upon their mission enthusiastically, with the intent to “win” for their client, whatever the definition of “win” might be in the situation. This creates instant conflict, even between couples who may have disagreements, but are not necessarily adversarial. The nature of the legal system requires the participants to be adversaries. The name of the game is to make things as difficult and uncomfortable as possible for the other “side.” (Even the nomenclature is adversarial). This is done by such methods as refusing to pay family bills, like the mortgage and utilities, refusing to supply needed spending money to a dependent spouse, and/or refusing to allow the other parent to visit freely with the children. This behavior does not always happen, of course, but it happens often enough, fueled by anger and hurt as to why the marriage is ending, that it has become infamous for the pain it inflicts. The goal of sparring divorce lawyers and clients is to make someone so vulnerable that they will settle the entire matter on terms advantageous to the other side.

Not every divorcing couple starts out wanting to hurt each other by withholding money or children. Ultimately, judges will make decisions about who gets what, but not until many months or even years go by, and thousands of dollars with delays, adjournments, the slowness of the beauracratic system, until justice delayed is justice denied, with enormous financial and emotional cost of the entire family, especially the children, who are sometimes used as pawns. Control is no longer with the couple, but in the hands of a stranger-the judge and the divorce attorneys.

When couples see a divorce mediator, they have a strong tendency to talk about their grievances during the marriage – what happened in the past. There is plenty of blame and name-calling to go around. What divorce mediators know, and use in their work, is that talking about the past does not result in an agreement. In fact, it often prevents agreement. Part of the role of the divorce mediator is to direct the couple to talk about what they want for the future. This feels sort of strange to the couple who is used to arguing about past behavior. The divorce mediator will summarize, emphasizing useful information and ignoring irrelevant and emotional comments. Another technique is “normalizing” by which the couple is reassured that their problems are not unique, and that other people have struggled with the same issues before and have successfully resolved them.

The divorcing couple are advised that they may each consult a divorce lawyer at any time. This knowledge can be reassuring to a timid spouse who feels he or she will be bowled over by a demanding partner.

To learn more about divorce mediation call New York Divorce Mediator Lois Brenner.