MEDIATION IN DIVORCE PREVENTS BLOODY
FIGHTS
by Grier Raggio
Law Offices of Raggio & Raggio, P.L.L.C.
Recently, there has been significant national attention paid
to efforts in a number of states, including Illinois, Iowa and
Michigan, to repeal blanket no-fault divorce laws and
re-establish fault as a necessary ground for divorce,
particularly when only one party wants the divorce and when the
marriage has lasted more than 10 years and/or minor children are
involved.
While the goals of the efforts are defensible -- preserving
marriages and protecting children by making divorce by one party
more difficult -- we need to turn the clock forward, not back.
Lessening the rate of divorce no doubt would have some
positive social consequences, but the courts do not have the
expertise, ability or time to accomplish them -- nor is it their
proper role. We need to created educational programs to teach
people how to establish good marriages in the first place, rather
than launching an after-the-fact effort by the courts to save bad
ones. And while restoration of fault would probably make more
money or the matrimonial bar, many of us who have experienced the
wastefulness of litigating fault would not be happy with such a
step backward.
In fact, the recent attention that has been given to fault is
unfortunate because it is distracting attention from a larger and
more important trend in divorce reform. Rather than add burdens
to the court system by bringing back a more tortious and
litigious divorce process, efforts are under way nationally to
unburden the courts and make the ending of bad marriages a less
stressful and adversarial process through mediation.
Creating Adversaries
These efforts need to be supported. The sad legacy of fault in
divorce is that our legal system has proceeded on the assumption
the parties were adversaries. Whether they really were, whether
they wished to be or whether it even made any sense for them to
be quickly became irrelevant. Like every self-fulfilling
prophecy, in assuming that they wee adversaries and in then
organizing them as such, that is exactly what they became.
Ironically, for many years divorce lawyers in America turned
their backs on mediation, viewing it at best as second rate
justice. Having left the mediation work to non-lawyers, often
therapists, they were able to persuade themselves that the
results had fulfilled their prophecy.
All of this is changing. In increasing numbers, experienced
divorce lawyers are stepping forward to learn the skills
necessary to work with divorcing couples in this way.
Increasingly, they are recognizing that this impetus toward
mediation is consumer-driven: It is what the public wants.
Nor is that hard to understand. In an important sense, divorce
lawyers are legal undertakers. They bury dead marriages. funeral
should be conducted with dignity, but they should not cost any
more than dignity requires.
Litigation does more than cost money -- it takes time and
prevents divorcing couples from getting on with the business of
their lives.
Most important, litigation can do a great deal of damage. This
is somewhat true as a generality, but in non-domestic cases,
litigants are usually strangers or, if they had a relationship in
the past, are unlikely to h ave one in the future. For most
divorcing couples, however, that is not the case. They may not
want to have to do a lot of business with one another in the
future, but if there are children involved, the relationship will
continue to exist in an altered form. Mediation can make that
future relationship less stressful; litigation is likely to lead
to endless strife.
Judicial Acceptance
The second reason for the growing acceptance of mediation is
the attitude of the courts. Judges traditionally do not like
matrimonial matters and prefer to see property and custody
disputes settled our of court. Divorce mediation not only offers
that as a possibility, it makes it a priority. As a result, state
after state is creating our-related mediation facilities.
Responsible lawyers recognize that though it may be necessary
to resort to litigation, it should be used only after other
options have failed. And, somewhat to their surprise, divorce
lawyers are finding that they enjoy being divorce mediators, that
it is challenging and rewarding work. Litigation, after all,
takes its toll on everyone, lawyers included.
For many lawyers, divorce mediation has come to represent a
welcome respite from the courtroom wars. Mediators' ranks now
include some of the most experienced divorce lawyers in the
country, and the American Academy of matrimonial Lawyers now
trains and certifies its fellows as mediators for family law
problems.
Counselors at Law
Finally, divorce mediation is serving another function. It
reminds divorce lawyers that we are counselors at law as well as
attorneys at law.
It also helps us counter the public suspicions that divorce
lawyers are more interested in creating problems than in solving
problems. In increasing numbers, quality matrimonial lawyers are
no longer willing to leave mediation to non-lawyers and are
embracing mediation for family law.
A great deal of progress is being made toward saving families
from protracted, scarring and financially ruinous divorce
litigation. Lawyers and their clients both stand to gain from
this improvement. States must resist the political pressure to
take a giant step backward. Divorce reform needs to move further
ahead, not back to past mistakes.
LAW OFFICES OF RAGGIO & RAGGIO, P.L.L.C.