The Divorce and Family Mediation Roundtable
Four expert lawyers share strategies, insights and advice to manage conflict, prioritize children and reach a satisfying resolution.
There are multiple options for couples divorcing – going without representation; litigating in court; and working with a neutral attorney as a mediator to come to an agreement. What are some of the pros and cons?
Brian Hartley: As an attorney, I recognize my bias, but I frown on self-representation a bit – although I do think there are some positives. You maintain your privacy and you keep costs down. The cons are that it lacks the knowledge and expertise that the four of us have accumulated through decades of practice. We’ve been in courts, we’ve seen what works, what doesn’t work. We can get creative with solutions. Doing it yourself, you lose that value.
Susan Hansen: I think the biggest issue with unrepresented, or pro se, divorce is the lack of knowledge. People don’t know what they don’t know. They come to agreements, and those agreements later unravel. They didn’t calculate values or talk openly about the needs of their children or realize tax issues, and so they end up back in court after they thought their divorce was done. It’s important to do it right the first time. Mediation gives an opportunity for a cooperative couple to come to a well-informed agreement, understand the consequences of their decision, and work together with a neutral lawyer to do it right and have a durable outcome.
Margaret Zickuhr: I agree with Susan. When I see pro se divorces, often they will end up coming back after the fact with problems they just didn’t anticipate. Mediation is a nice blend between doing it yourself and going to court. It gives couples the knowledge of an experienced attorney, but you’re not litigating all these issues in a courtroom. I find that complex issues are much more effectively
dealt with through mediation than through the court system.
Christine D’Angelo: The only time I would recommend pro se divorce is when a couple has been married maybe a year, they don’t have kids, they don’t own any real estate together, and they haven’t taken any loans. Other than that, like Susan said, you don’t know what you don’t know. But we know what you don’t know. Divorce leads to problems with real estate, refinancing, auto loans that people just don’t know. That’s where a mediator saves a lot of headaches down the road.
Hansen: To Christine’s point, I recently had a couple tell me not to worry because they had their whole agreement already worked out. And then it turned out they didn’t know that retitling their home would mean refinancing. It would have been financially disastrous for them if they had proceeded without some education.
What common mistakes do you see during the process?
D’Angelo: Divorcing couples don’t realize that others are not bound to the agreement the two of them reach. So for example, a mortgage lender. If you don’t have provisions related to your mortgage, the spouse who doesn’t live in the house could still be on the hook for the mortgage if their name is still on it. The other big mistake I see is divorcing couples who are getting along will decide they don’t need to draft any kind of a schedule for sharing time with their kids. My suggestion is to always have a schedule in place. Figure that out now, while you’re getting along, so if there’s ever a point where that changes – and that can happen, especially if a new significant other enters the situation – there’s a plan to fall back on.
Hansen: I would say the No. 1 mistake is not taking the time to really understand what their choices are. I realize no one wants a protracted divorce, but taking time at the outset to make a well-informed choice is going to absolutely transform your process on the level of conflict and cost.
Zickuhr: I’ve had quite a few people who say, “I’ll just let the judge decide,” instead of doing the hard work of figuring out an agreement. Judges come to a midpoint and try to do what they think is fair with limited information. Generally, people can come to a better decision themselves rather than giving that control over to a judge who will never understand their life at the level that they do.
Hansen: Depending on which county you’re in, it can be years before you even get into a trial, and it can be many, many, many thousands of dollars in cost.
D’Angelo: When I hear someone say they’re just going to let the judge decide, I explain to them, “You’ve been in this marriage for 20, 25 years – if you’re lucky, you’re going to get three hours to explain your entire existence to the judge. They are never going to get it. So if you want control over what happens in your life, this is the time to do it, outside that courtroom.”
I personally do not believe that courtrooms are designed for family law disputes. They are probably the worst place you can go to have these discussions. That’s not because the judges and the court commissioners don’t care, or aren’t trying their best. They just don’t have the time to get all the information that we can in mediation.
Hartley: To echo that, I was a court commissioner for almost seven years, and the main reason I left is because courtrooms are the worst outcome for children, period. There’s no doubt in my mind. And generally people who say, “I’m just going to let a judge decide,” are back in court six months later, a year later, two years later, fighting about something different, so it is the worst outcome for families in my mind.
How can mediation help when it comes to making the divorce process easier on children?
Hansen: I take an interdisciplinary approach, and I believe the rest of you do as well. I work with a child specialist, a mental health professional who is also a trained mediator. Parents can work directly with the child specialist to create a parenting plan. It can have those scheduling details we talked about, but it can also go deeper, like how the parents are going to communicate, how they’re going to make future decisions. I think it brings tremendous value to families and children.
Zickuhr: As mediators, we’ve seen unique situations and can help parents navigate them. Sometimes parents have ideas that are not always best for the children. One example – I’ve had several spouses who tell me they want to celebrate together every Christmas with their children. That sounds lovely, but I’ve had more than one child say to me, “We were together at Christmas,
and I thought it was a miracle – my parents were back together again. And then the next day, they weren’t.” It’s heartbreaking, despite the parents’ best intentions. Working with an experienced mediator can help avoid those kinds of situations.
Hartley: We have cases in which we’ll have the child specialist meet with the parents before we do anything else and teach them how to tell their kids they’re getting divorced. It’s laying a foundation so these parents can better communicate with their kids about what they’re about to experience.
What is the most frequent advice you give to couples approaching divorce?
Hartley: Children first. They’re always the most important part. Be purposeful about helping them through this process because their lives are being upended.
Zickuhr: Slow down. There’s no reason to rush the process. You don’t want to look back and say, “Oh, if I just thought about things a few more days, it would have been different.” Give it that time.
D’Angelo: Breathe. Just stop and take a breath. These things do not happen overnight. And I know you may be anxious and want answers right now, but there is life after divorce for everyone. We’ll get there.
Hansen: Do your homework up front. Don’t make decisions until all the information is on the table and you’ve explored all the options. I also think there’s not enough public awareness of mediation as an option. Couples often think either it’s do-it-yourself or you each hire a lawyer. The more we can educate the public about this option, the more families it can help. ◆
