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Editors note: This column is the
final of three installments
discussing divorce and the legal
system.
Mediation is a process being used
with increasing frequency in divorce
cases as an alternative to going to
trial.
What is it and why would you
choose it? You may be thinking,
‘just give me my day in court -- I
just want the chance to tell my
story. Once the judge hears the
whole story, I know he will do
exactly what I have been suggesting
from the very beginning.’
If that’s your mindset, then
mediation is probably not for you.
In fact, you may not even need a
lawyer. You might do much better
with a psychiatrist.
The sad fact is that no one
really gets to tell the whole story
in the courtroom. There are time
constraints: You only have so much
time to talk, and no matter how much
time you have, it is never enough.
Then there are the
unintelligible rules of the road in
the courtroom. Trust me, you will
not fully understand these rules
until you are fluent in both Greek
and Latin. The rules say you may not
mention this or that -- probably the
very points you want to tell the
judge.
Then there is your spouse’s
lawyer, waiting for his or her turn.
They call it cross examination. If
done skillfully, however, it feels
more like a proctology examination.
Then there is the judge.
Hold onto your seat -- the judge may
actually think that what your spouse
says makes more sense than what you
say, as bizarre as that idea might
sound to you at this point. Go
figure.
If what I’m describing
sounds pretty good to you, then the
courtroom is your kind of place. For
all the rest, mediation may be the
ticket.
Mediation typically takes
place toward the end of the divorce
process, after the lawyers have a
good feel for how things are likely
to work out, and after the parties
have had a firsthand look at how
emotionally and financially draining
the process actually is.
The lawyers, rather than the
judge, generally pick the mediator.
Generally that person will be a
lawyer experienced in divorce cases
and brimming with common sense and
compassion.
The mediation session takes
place in an office conference room,
not in the courtroom. Usually just
the spouses, the lawyers and the
mediator are present, although
sometimes if there are complicated
financial issues accountants may be
involved as well.
The mediation session can
last 12 minutes or 12 hours. It
begins with the mediator giving a
spiel on how awful the divorce
process is, which you already know
or else you wouldn’t be sitting
there at that precise moment
surrounded by three lawyers and your
soon-to-be ex-spouse.
The mediator describes the
mediation process and emphasizes to
the parties that each spouse still
has the power to influence the
ultimate result: There is a
tremendous amount of ‘horse
trading,’ to use an apt phrase,
which occurs during the day.
Horse trading is not
generally an option in the
courtroom. Once a divorce trail
begins, and the judge puts on that
goofy robe and sits at the bench at
high altitude without the benefit of
oxygen, do not expect him to lean
over to you during the trial and ask
if it’s okay if he awards custody of
the children to your husband, or if
it’s okay if he orders half of the
pension benefits to be paid to your
wife. Or if it’s okay if you only
get to see your kids every other
weekend and on occasional holidays.
I don’t mean to be scaring
anyone here, but if you find
yourself in the midst of a divorce
trial, you must truly be a gambler:
A divorce trial is frequently the
ultimate crap shoot.
Back to mediation. After the
mediator makes opening remarks, each
lawyer then delivers an impassioned
and brilliant summary explaining
exactly what his or her client
wants, and exactly why he or she
should have it. Since nobody at this
point is prepared to give an inch,
the mediator then goes to work.
One spouse and lawyer leave
the room. The mediator visits with
the other spouse and lawyer for as
long as it takes to get a feel for
that party’s position. The mediator
then meets separately with the other
party and lawyer, and they go
through the same process.
Each mediator has his or her
own style. Some mediators very
gently attempt to massage the
parties toward common ground. Others
may take a more assertive role,
privately working on the weakness or
unreasonableness of a position one
party or the other might be taking.
Lawyers generally like the
mediation process because it give
them the opportunity to have the
case evaluated by an impartial and
experienced lawyer, the mediator, at
no risk. It is like buying a second
opinion late in the case when the
lawyers know most everything there
is to know.
If the parties come truly
prepared to compromise on tough
issues and arrive at a deal, it is
as likely as not that you will leave
the mediator’s office with a
settlement.
The worst part of this very
difficult ordeal is now behind you.
The legal side of the divorce
process is literally a week or two
away from being concluded. All you
have to do now is learn to live with
it in peace.
We are out of time. In the
next column, we’ll talk about a
related subject, “palimony.” What
happens when you fall madly in love
with that wild and crazy person,
spend years together promising
eternity, then change your mind and
want everything back? What can you
reasonably expect from the Wyoming
courts?
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