Mediation vs. Litigation

In my 40+ years of family law practice, during which I spent 19 years as a Substitute Judge in the various Juvenile and Domestic Relations District Courts in the Hampton Roads area of Virginia, I found that the adversary process of litigation destroys families. The courts often make decisions with little understanding of the dynamics of the family involved and frequently make decisions that result in wounds that never heal completely.

Divorce is unique in our legal system. While most lawsuits involve a discrepancy of fact and the outcome is determined by a search for truth, divorce involves not only facts but feelings. Legal issues and procedures are co-mingled with psychological and relationship issues, making a divorce a matter of the heart and the law. Mediation is not about finding the truth, since most disputes are about differences in perceptions.

Since divorce is, in its most technical terms, the breaking of a legal contract, our society handles it through its legal system. However, the current legal divorce procedure completely ignores the fact that a divorce is also the breaking of an emotional contract. Accordingly, and because ending a marriage is the turning point in the lives of the people involved, the most constructive means possible should be used so that both parties can start their new lives on firm ground.

The alternative to an adversarial divorce is mediation. Mediation is based on the premise of self-determination, i.e., the parties are responsible for making substantive decisions in their case rather than the attorneys they hire or the courts. Also, in cases of children, mediation assists in not just ending the marital relationship but in transforming their relationship from spouses to parents. Unlike the current adversary process, mediation helps the parties in defining new lives and options, in restructuring the family rather than dividing it into hostile factions, and in putting the past behind and concentrating on the future.

Mediation uses an interest-based (“problem-solving”) approach to negotiation in which parties explicitly identify their respective needs and interests and select options maximizing the interests of both parties and their children. Mediation shapes a resolution that reflects the parties’ economic and personal needs and interests far better than the litigation model. Being future-focused, mediation looks at where the parties want to be 5, 10 or 20 years from now and what it is going to take to get there. Mediation provides parties the best opportunity to work together to deepen their understanding of both their perspectives and interests. Mediators often bring other professionals into the process, such as attorneys, therapists, appraisers, CPAs, and financial advisors, to provide additional information to the parties and to help them in generating potential options and in making informed decisions.