We all know the story or some version of it: A couple decides to separate, they hire attorneys, end up in court and everyone loses one way or the other. It’s an adversarial process by its very nature, takes a great deal of time and keeps the parties at odds with each other which only pro-longs the process and increases the costs even more!

A few years ago I worked with a couple in a challenging mediation where the wife felt as the sessions progressed, that she should be “entitled” to more. Despite these feelings, she was willing to negotiate and did a very good job protecting her interests. They completed the mediation and in the end, given their resources, they worked out a pretty fair and equitable settlement – or so it seemed to me.

In my process, we read through the draft of the Agreement in a review session and discuss any changes they wish to make. After that a revised draft is prepared and if the parties wish, they can take it to an attorney to review it for them. This couple agreed to have it reviewed by their respective attorneys.

I received a call from the husband, *Jack a few weeks after the review session telling me that he thought that *Jill was going to start all over and “take her chances in court.” I called her and left a message but she never returned my call. I took this as a sign that she indeed did intend to follow through on her threat to find “justice” in the court system.

And so she did. I received the following email from the husband a few weeks ago (after he received my most recent blog on “The Emotional Divorce”):

Hi Ada,

Wanted to let you know that

[*Jill] and I finally reached a settlement at trial! It has been over two years in the making. After two years of legal bills that must be over $30,000 – the settlement amounted to what we had discussed in your mediation sessions and in the mediation agreement. Nothing more, nothing less. It’s amazing – what a waste of emotions, time and money.

Whoever said “whatever doesn’t kill you; makes you stronger” must have been talking about divorce. This is not a process for the faint of heart. I truly believe that the law needs to be changed so that mediation is the primary method for divorce settlements and must be supported by the courts. I believe that I was well represented by my attorney but it should never have come to the emotional or financial cost – ever!

I have praised mediation and recommended you to several people starting this process. In the end, it is all emotion that guides people toward lawyers and the courts. I hope that your organization has a good lobbying effort to persuade mediation as a mandated first step in any separation. Thank you again for all of your help and guidance along the way.

What a waste of time, money and energy indeed! Not to mention the emotional cost. I spoke with *Jack after reading his email. He told me that it was the worst two years of his life. The emotional toll it took on him was enormous. He said that when he was sitting in court he felt like he was a character in a Kafka novel. He could not believe what was happening – that it was like living a bad dream. I would assume that by the time *Jill got done, she felt the same way. Such a terrible drain on whatever resources they had and now …. enemies for sure.

The moral to the story? What may seem equitable and fair to you might not be how the courts see it. You can take your chances (and they are chances) in the court system. But wouldn’t it be better to work it out together so you keep whatever financial resources you have between yourselves without wasting it on a legal system which cannot guarantee to give you what you deem as fair? And this is not even factoring in maintaining your dignity and emotional well being, which has as much value as any monetary settlement.

*names changed

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