Mediation can spare hassles of the court

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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