Why Mediation?

WHEN IT STARTED WITH ME

In 1993 I assisted a deputy sheriff with custody of his small son.  He and the mother had not been married.  He had been telephoned by the boy’s maternal grandmother that her daughter was living with the child in a house with drug users, drug parties, and the daughter was stoned most of the time and the little boy, she felt, was at risk of abuse from the men in the house.  The grandmother said if the father didn’t come take charge of the boy, she would file for a guardianship.

We filed an action to establish parental relationship.  Mother responded, and I negotiated an appropriate parenting plan between her and the father of the little boy, with the child’s residence with father and his wife..  The mother had become more sober.  She was getting her life back together.  A month after she signed the parenting agreement, her lawyer filed for custody, saying that now that she had more time with the child, she should have custody.

The court ordered a psychological report.  The psychologist  over the three months of the evaluation process caused such stress with my client and his wife that they nearly divorced.  The psychologist used invalid tests, wrote 53 pages, and charged $4,800.  I hired another psychologist for $1,000 to rebut the first.  I had a dynamite trial brief I had worked and re-worked to perfection.

In court at last for a hearing, the judge–not the one who had ordered the psychological report, did not want to hear testimony of any expert.  He did not read the 53 page report.  He did not read the trial brief.  Instead, he addressed each parent, questioning them as to their interests in their child and in parenting.  In 20 minutes, he had their mutual agreement to a parenting plan.

I drove back to my office with visions of the climactic scene from “The Bridge Over the River Kwai,” the scene where after  British prisoners of war sweat blood, toil, tears and sweat to build a bridge for the Japanese army, American commandoes blow it up as the first train is crossing.

All that time, all that stress, all that money – for what?!   The judge blew up the whole construction.      What that judge did, I reasoned, should have been done as a  first step, not the last step.
I thought of similar cases – people fighting for custody not to get custody but to bargain the children for a better property settlement; filing for custody when the other parent asks for an increase in child support; refusing reasonable settlement to run up fees for the other party when you have rich parents to pay on your side; and most commonly, hostility created between people by aggressive lawyers.  Attorney fees mounting to $100,000 for nothing but two children, a house and a pension!  Children’s college funds gone.

What was needed, I came to think, was a gatekeeper, a guide, a process to review the problems between the parents or divorcing couple.  A guide.  And a disinterested decision as to whether an issue warranted an evidentiary, adversary hearing.

Until that change comes, mediation is the safer way to divorce.


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