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Mediation Became a Feasible Alternative to Litigation

American matrimonial law is punitive — protracted, expensive, confusing, damaging. Yet a divorce is now an ordinary outcome to a marriage. Over the last two decades, the proportion of failed marriages had held stable at around 50 percent, but (while national data lags) some experts suggest that the rate may be tipping over half. Historically, periods of economic hardship tend to keep couples together; the current economic downturn, however, appears not to have had that effect. A survey by theAmericanAcademyof Matrimonial Lawyers found that 78 percent of divorce attorneys say that their caseloads are steady or increasing. Several studies, according to The Wall Street Journal and others, show that divorce filings have increased in many areas and, moreover, that there is an increase in the number of contentious divorces.
Mediation became a feasible alternative to litigation began in the 1970′s, it is now beginning to reach a critical mass. My hope is that someday soon people may look at litigation as a last resort only for unusually contentious divorces (cases in which one partner is abusive or absent), rather than the norm. Litigated divorce inherently fosters enmity. In litigation, dialogue immediately ceases: the first rule a lawyer conveys to the client is literally to not talk to his or her spouse. Mediation, by contrast, relieves couples of the need to badmouth each other. Couples employing mediation have been shown to be significantly happier with both the process and the results than couples using litigation. As an article inSt. John’sLaw Review noted, one study found that 73 percent of those in mediation were satisfied or highly satisfied. Trials yield little satisfaction, and even attorney-negotiated settlements were satisfactory to only 23 percent of divorcees. In mediation, you have the opportunity to tailor the law to your own needs. Mediation, as a process, teaches both parties to make the right choices, communicate to each other, respect each other’s opinions and handle issues fairly without any overwhelming feelings of guilt or shame. During a mediation process a couple will hopefully acquire knowledge not to depend exclusively on professionals, but rather be creative and come up with their own decisions, negotiate fairly and in good faith, learn how to experience and express their anger rather than act it out. Therefore, frictions can be avoided, thousands of dollars can be saved, and both of you will be able to enjoy your children’s birthdays together for many years to come.

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