Equitable but not Equivalent

Regardless of planning or the very best of intentions, nearly half of marriages fail.  As a mediator, an important goal is to help people understand one simple reality; unless previously noted in a signed and executed prenuptial agreement, all assets and property are part of the marital estate.  Rationally this is pretty straightforward but emotionally people will dig in their heels believing that they brought more to the marriage and should therefore get more back out when the marriage ends.  Adopting this position can be a significant obstacle to success in mediation and rarely if ever gains any traction in the courts.  But this has not stopped people from marching to court believing they have the best attorney since Ally McBeal only to hear from a judge that the marital estate is to be divided equitably.  To that likely outcome, factor in an overburdened and backlogged court system and attorney’s fees and many people walk away with a boilerplate settlement that took too long and cost too much.

A lot of potential clients understand that a litigated divorce will be more expensive and more time consuming.  Many of those also recognize that it will be more stressful.  There are highly cited studies showing that litigated divorces lead to worse parenting outcomes.  Despite all of this the one thing that a majority of people fail to recognize is that the lose control of the outcome the moment the decision is made to fight this out in court.  By contrast mediation gives you the opportunity to develop a settlement that may meet some of each party’s priorities.  The best example is a marital home.  Both parties may have a shared goal of keeping the home for the sake of children.  Separately one party may have an individual goal of keeping the home and the other is less committed to it but wants a bigger share of the financial resources.  In these cases, settlements that are equitable but not equivalent can be crafted by a skilled mediator or by attorneys representing each party.  Once the settlement is reached it can be drafted into a decree and presented to the courts (very often without an appearance by the parties).  Assuming that the equitable but not equivalent standard has been met courts are likely to approve.  

Equitable but not equivalent?  All settlements should be equitable in that the dollar values of assets, property and debt should be very close to even.  That said they need not be equivalent.  It is very common that mediated settlements may come away with a more customized distribution.  For example one party may accept a settlement that is more heavily weighted in liquid assets while the other accepts property.  Courts may consider these settlements if parties arrive at the hearing with an agreement in principle and mediation may be the best way to achieve that as well.

The key thing to remember is that in the absence of an pre-negotiated agreement, the courts will default to a boilerplate division of the marital estate that will not address shared or individual goals.  It is not that they are mean, uncaring or punitive…..they are none of the above.  The court system simply lacks the time and resources to oversee negotiations and craft customized settlements.  

Hire and Attorney but DO NOT LITIGATE

Hire an Attorney but DO NOT LITIGATE

Divorces are complex matters in which a lot of high impact decisions regarding parenting, finances and property have to be made.  For many, those decisions are made during periods of great emotional stress when negotiation and compromise are more difficult.  This is why I recommend that clients hire an experienced attorney who knows the laws and can provide advice.  Mediators certainly know the laws well enough to assist with development of a settlement that will be acceptable to the courts, but they must remain objective at all times and can never provide legal advice.  A good attorney should empower you with sound legal advice but more importantly a good attorney should recognize that litigation is rarely in his or her clients best interest.  This is why I try to discourage clients from “lawyering up” which I associate with a counterproductive aggressive posture.  

Most people are aware that successful mediation spares clients the time and expense of litigation.  Attorney’s fees are high and pile up quickly and the resources in the court system are stretched extremely thin.  What many are not aware of is that mediation offers divorcing parties much greater control over the immediate outcome as well as the long-term outcome.  Mediation is an opportunity to craft a settlement that best fits a couple’s shared priorities around parenting and marital property while also addressing the individual priorities through a process of facilitated negotiation.  The court system rarely has time for this sort of customized approach.  Perhaps more importantly mediation has been shown to produce better long-term outcomes.  The Divorce Mediation Study by Dr. Robert E. Emery compares the long term outcomes of couples who used mediation and couples who used an adversary system.   These couples were followed for up to 12 years in order to monitor the durability of the settlements.  The results indicated that:

1.     Mediation kept families out of the court system.

2.     Couples who mediated had more productive and functional parenting arrangements.

3.     Among couples who mediated, non-residential parents had approximately 4 times as much telephone contact with their children than couples who l settled via the adversary system.

4.     Couples who mediated often “graded” their co-parents more favorably than couples who settled via the adversary system.

These long-term outcomes not only best serve the interests of the children but also help to promote a more respectful and amicable co-parenting relationship.  I encourage all couples considering divorce to read the results of Dr. Emery’s research.

Why am I doing this?

The primary reason I've chosen mediation at this point in my professional life is that I believe that our family court systems are badly under-resourced.  This is not a criticism of the people who work within these systems but more a reflection of an emerging set of priorities within the state governments of New Hampshire and Vermont.  The upshot of this broken system is very long waiting periods at precisely the time when couples want and need closure.  Additionally the system is so overburdened that contested cases typically result in settlements in which property is liquidated and parties walk away with very little of what they wanted.  By contrast mediation is proactive and it represents and opportunity for parties to craft a settlement that best fits their shared priorities, their individual priorities and family needs.  Studies have shown that these settlements are more durable in the sense that they rarely end up back in court to be re-contested.   More importantly other studies have shown that mediated settlements produce more productive and amicable co-parenting relationships.  The bottom line is that the litigated path is takes longer, costs much more and produces less efficient and more acrimonious settlements....in other words you will spend more time, and more money for less control over the outcome and greater difficulty moving forward with shared parenting rights and responsibilities.  

I personally believe that even under very difficult and adversarial conditions conflicts can be constructively resolved via a facilitated discussion between parties.  It is not a perfect system and it will not work in all cases but the odds of a favorable outcome are far greater than in the courtroom.  My goal is to help people get to those agreements.