“How does divorce mediation differ from ‘getting lawyers’?”

by Lenard Marlow, Founding Partner, DMP

I spent the beginning of my legal career as an adversarial divorce attorney, but have spent the last 30 years in the practice of divorce mediation. For sure, I am biased toward the latter, but it’s a bias I’ve reached through careful and honest observation.

You can find definitions of the difference between mediation and adversarial divorce (“getting lawyers”) all over the web, including here.

But, this is the key difference: adversarial divorce assumes that in order to bring your marriage to a conclusion, you and your spouse are adversaries, and that you must go off on your own and each retain lawyers who work against one another.

Divorce mediation assumes you are two people with a common enterprise and a common cause. Your common enterprise is to bring your marriage to a conclusion, and your common cause is to do so without losing control and starting World War III.

Mediation assumes that however you may feel about each other today–however angry, sad or hurt you are–you have to work together if you want the best outcome for yourselves and your family.

Adversarial divorce has a tendency to get out of control and take on a life of its own. You and your spouse each have an attorney and those attorneys take control, each looking out only for their client’s interest–not the interest of the family or what is most appropriate under the circumstances. As a result, you and your spouse are both left feeling defensive and on guard. In time, one of you will feel the need to take some pre-emptive action to protect yourself against the threat you perceive. The other will likely return the “favor,” whether it’s canceling a joint credit card or canceling a pre-determined appointment to see your children. (I saw it all in my days as an adversarial divorce attorney.) For each “tit” there will be a “tat”–ad infinitum. In time you will have all the proof you need that the other can not be trusted. You will also likely have a very large legal bill and a divorce process that has taken many, many months, if not years.

In contrast, when I meet with a couple for the first time as a mediator, I employ a simple metaphor to illustrate the difference divorce mediation offers. The three of us are sitting at a small round conference table in my office. Placing my hands face down on the table, I tell them that if they employ my services, we are always going to meet with one another with our hands on top of the table. Neither of them is going to have to worry about what took place at the last meeting when they were not there. There was no such meeting. If one of them asks a question, I want the other there to hear the answer. It is hands on top of the table. Our interest, as divorce mediators, is only in the most equitable outcome for all parties.

In an adversarial setting, it is hands under the table. You will each meet with your own attorney, secretly, privately, behind closed doors. A Divorce lawyer will call this “confidentiality” and tell you it’s one of the great benefits of the legal system. What he will not tell you is that it will encourage you to go off and tell secrets to your respective attorneys, adding “Don’t tell my wife.” “Don’t tell my husband.” It will turn your lives into a game of one-upmanship.

Divorce is a serious business–far too serious to make a game out of it. Ballparks are for people who want to play games. Sitting down together with your hands on top of the table is for people who want to make some sense of their situation and reach a fair conclusion.

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