I got a call last week from one of my past clients who had filed for an absolute divorce in court. He had some serious concerns related to the agreement that both he and his wife created while in mediation, and wanted my personal input, as a mediator, but mostly as an attorney.
“Why as an attorney” I questioned, and the answer came as a flurry of cold air on a winter morning, scraping my ear: “My attorney says I can get a lower rate for child custody and he wants me to change everything in there. I am afraid this was not a good agreement that I have signed and now I am stuck because I know she will go all the way to get what she wants!”
He is not the first one to call me on such matters. In my office at Baltimore Mediation we often get calls from people who are being sucked into second guessing their own decisions, by people who allegedly want to protect their interests, or gain the most for them or their children.
While in mediation and particularly in transformative mediation, people make decisions not as parties to a contract, but as people, as former or actual partners, as parents of their children, as family or former family members, as friends and/or roommates, or all of them. One emotion transpires from their interaction: that of a lost love. Although the feeling might or might not be present any longer with either of them, they know they have lost something. Sometimes is to a better avail – it frees them from a hurting relationship and it gives them the chance to express themselves as they truly are, but regardless of the outcome or the intention, they both have a history and share a baggage. And it’s all about opening that baggage and putting things in order – “or not”.
This mere expression is intended in mediation to create the context for self-determination: the option of not making a decision, not organizing things, and not having a written agreement, which alleviates the pressure of having to create something, so that can people can do it more naturally, and not feel forced into anything.
However, because the outcome belongs to them, and because they come from a place where they acknowledge and respect their shared memories, feelings, assets and all that they have acquired together in years or months of shared time, people involved in a divorce mediation, will often times make decisions that recognize the value of the other person.
What does that mean and how do such decisions look like?
It means that they will jointly create options that maximize their level of satisfaction and that work best for all of them. They will not settle; they will not compromise. They will problem solve, and they will do it until they get it right. Whether that means that one of them will give up their summer home – partially or entirely – because they didn’t really like it that much there or never enjoyed working to maintain the property, the decisions will be theirs and they will walk to of mediation feeling they have done the right thing.
In daily life this can look something like this: you have a coffee pot that you never used, it was a gift or you can’t even remember how you got it in the first place. But you know where it is in your kitchen: you can visualize the shelf on which is sitting and maybe even the smell of the open cupboard. Yet one day you open it and it’s no longer there. You search frantically through the kitchen for it, you ask your children about it – the pot had mysteriously disappeared. And you are torn with questions and you feel anxious. Have you ever used it? No. Have you ever wanted to have it? No, not really. Than why do you care so much? Why the stress and the anxiety? All of a sudden your mental tranquility has been disrupted by an object that you have no use for. Oh, but that feeling of possession and control! You feel betrayed and you become suspicious of everyone in your household. Maybe it was the maid! Or a guest?
Everyone is susceptible of becoming a thief, an enemy, someone that deliberately wanted to trick you and harm you.
I think in a lot of ways divorce is similar. Except you lose a person first, and then half of your assets. Might sound funny and ridiculous, but it’s the truth. Mediation gives people the chance to come in check with this type of feelings, to acknowledge and overcome them, and to therefore make mature and informed decisions about the next steps. Litigation, on the other side fuels the feeling of betrayal, of anxiety and insecurity and boosts the paranoia. For a divorce attorney anyone who comes in contact with their client is a potential enemy – wants something or might be concealing something from them. See the analogy with the coffee pot situation? In this case however, it is in their interest to spread suspicion and enhance the need for material possession and control, because every second of doubt is a paid second for them. Yes, they run on a billing clock that spins 24/7 for people who don’t have the courage to face the truth and face the other party. And they will seek to prolong the situation indefinitely to the point that they might be the ones “hiding the pot” from you.
Most times in the litigation world is not only about the money divorce attorneys can make but also about the vanity of having said “I’ve got everything for my client!” Whether that means full custody, highest child support, a house and other material assets, the attorney will take pride in having “won the game”, but will the client take as much pride in having hurt the other to that full extent?
I wish all of my clients and other mediation clients read this article, so they can then understand the importance of assuming responsibility for their decisions in a way that is also dignifying and human. In terms of divorce there is really almost nothing attorneys can do for us that we are otherwise incapacitated to do it ourselves. Of course, there are a few exceptions that are related to physical abuse and other illegal cons that people in marriages wish to accomplish, but that is a topic to remain addressed in the future.
I will close with I call a gold nugget: my advice to people who are going through a divorce situation.
Be careful who you entrust the future of your children, your relationship and your assets to. If you are not able to do it yourselves, due to emotional stress or trauma, try mediation first, and stay consistent and true to your own values, regardless of others’ advice. In the long run, it will help you sleep better at night and have a more meaningful relationship – if not with your former spouse, then with your children, who will acknowledge and respect your position at a right time in their own lives.
