The State of Minnesota has instituted a pilot program at the appellate level that diverts family cases to mediation instead of being ruled on by the higher court. Read about it here. Basically, after the trial court has ruled on the case, if one or both litigants wish to appeal the ruling, they now have the option to mediate first. That can save time, money and heartache.
Mediation is the process of turning over a legal dispute to an impartial third party – the mediator – whose job is to seek a voluntary agreement by the parties to resolve their dispute. If that fails, the case goes through its regular judicial channels, but experience shows that mediation is enormously successful, and that people tend to be happier with its results than they are with litigation.
There are many family attorneys who behave respectably, professionally and with integrity. There are many who don’t. When one spouse files for divorce, the level of conflict, mistrust and bad feelings in the marriage is often high. Divorce lawyers can easily use those bad feelings to turn what could be a relatively peaceful parting of the ways into a take-no-prisoners war. The more conflict there is, the more motions and hearings are required; and the more motions and hearings, the higher the fees.
But the anger engendered by divorce often far outlasts the legal process itself. The lawyer moves on to the next case, but the ex-spouses remain at each others’ throats.
So mediation, which seeks to – and usually succeeds at – reducing conflict, should be, in my opinion, a mandatory first step in the divorce process. If spouses begin the process of divorce on the most amicable footing possible, they’re more likely to continue that way than if they start with the flame-thrower.
The Minnesota experiment is good for starters, but it intervenes later than it should. When a divorce case is filed, route it immediately to a court-appointed mediator. If that resolves the matter, everyone – spouses, children, courts and taxpayers – will be better off. The only ones to suffer will be the divorce lawyers and who cries for them?