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Another view on Mediation v. Litigation:

With this being Halloween, allow me to postulate a little on the realism of family law proceedings in Family Court. Without frightening our clients too much, I would compare family court (at times) to the vampires of lore.

First, vampires cannot come into your home unless someone invites them. Once the vampire is in your home, you cannot force it to leave. And once it’s in, it can do things over which you have no control. Because no one would knowingly invite such a destructive force as a vampire into one’s home, the vampire generally has to seduce and trick one of the occupants into inviting it.

How is family court comparable to a vampire? By filing your petition for dissolution or custody, you have invited the vampire into your home. By asking the judge to make a decision, you have invited decisions into your life over which you no longer have control. By expecting justice, you have been tricked by the “vampire” into thinking you may actually obtain realistic justice. However, that justice is often very elusive and often rarely granted. Additionally you get much more from the judge, than you ever requested or anticipated.

Many individuals today take the position that because truth is on their side, the skies will part and justice will rain down. The sad truth is that because there are two sides to every story, justice is never complete. The judges in family law cases have neither the resources, nor frankly the patience to muddle through the messy details of the individual family law case including long-term interpersonal relationships. Instead, the Court generally relies on the impression it gets from very short hearings, coupled with the given judge’s personal proclivities and mood on a given day in making make decisions that will profoundly impact your family’s lives.

While this may initially sound unfair, the judges know that the parties in a case possess the facts, details, and the experience to be in the best position to make sound and logical decisions for their own individual families. This is why judges prefer situations where parties to the particular family law case settle their issues/disputes between themselves or their attorneys by way of family law mediation, collaborative law, or settlement facilitation.

I have often heard judges say to parents, “Given that you both obviously love and care for your children so much, I have a very hard time understanding why you would put these very important decisions about them into the hands of a total stranger. If you both love them so much, why don’t you prove it? Put your animosity for one another aside and put the children first for their sake.” These are hard words to hear from the bench, especially when you are expecting “justice.” In this case, the judge made no decision, but sends everyone out in the hallway, telling them to come to an agreement.

On the other hand, the judge, acting in the role of vampire in your house, may make decisions you neither requested nor wanted. Very rarely does one side completely win and the other side completely lose. More often, everyone feels like the loser and no one is happy. When you trade your own power to compromise for a shot in front of a judge, you are stuck with what the judge does, and it may fall short of your expectations.

Think hard about inviting the vampire into your home. It may seem like a good idea at the time, but you could also end up regretting it. We have had many cases where we have gotten parties through their entire divorce without stepping a foot inside the courtroom. It is grueling work for the parties, given the emotional investment and toll, but it is ultimately worth the effort in the long run.

Because not all cases can be decided through mediation, next week’s blog will discuss he role of the third party decision maker in family law cases including the Rule 11-706 expert, the guardian ad litem and the court clinic.

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