In a domestic case involving divorce or a parenting case between two unmarried parents, the proceedings will come to a legal conclusion upon the entry of a final court order, and that end point will be arrived at through one of two very different pathways.
One route is by engagement in dialogue and negotiations between the parties. The other is by way of conflicted, adversarial legal proceedings.
The inevitable choice is made by the couple, and hopefully that decision is informed and voluntarily made by each person, rather than by a lawyer.
It has been reported that in our state currently only about 10% of domestic cases before the court proceed to a final, contested trial. Hopefully those who have made the choice to reject settlement offers have done so after carefully considering both the emotional toll and substantial monetary expenditures which will result in a high conflict adversarial trial, as well as the fact that no lawyer can guarantee an outcome.
In the real world, the aim of an attorney representing a client in an adversarial, final hearing in a domestic case is to essentially dig up and present as much dirt, and to rain down as much pain, on the other party as possible.
I have used the phrase, "In the real world" simply because most people have never had to undergo the stressful experience leading up to and during a trial proceeding before a court, and therefore cannot realistically anticipate what the trial will really be like and the real risks involved.
Litigants who have chosen to proceed to a final contested hearing must also recognize that they have in effect elected to place the final decisions regarding the many important issues between them in the hands of a third party stranger, who will decide the outcome after an oftentimes hurried formal hearing, subject to archaic and restrictive procedural rules.
Often after the trial is over and the judge has issued his or her final orders one, or both, of the parties feel that they never had the opportunity to tell their true story, or perhaps worse that they were not understood.
This naturally should lead to the question, “Why make the unhappy, often times sad, ending of a marriage more traumatizing to one, and in most cases, both parties?"
Fortunately, there is a better alternative.
There is a fundamental premise accepted and embraced by our judiciary, as well as mental health counselors and professional mediators, that it is in the best interest of families that the resolution of their divorce, or other family proceeding, should be handled in a fair, timely, non- adversarial and respectful manner, with the ideal of seeking to avoid the unnecessary and long lasting recrimination so often characterized by high conflict adversarial proceedings.
The mediation process, when conducted properly, is particularly well suited to attain these goals. Our informal mediation process is especially intended for the individuals involved, to encourage them to communicate with each other and to explore mutual concerns and considerations in a joint cooperative effort to reach a settlement, which is both reasonable and which meets their individual needs and that of their families.
Francis F Lane JD, CFM