Divorce Mediation vs. Divorce Litigation
and Family Law Conflicts in Maryland

by Nancy Caplan

You probably already know something in general about Divorce Mediation in Maryland.  You may have heard about it in the news or at your workplace.  The over-burdened legal system and the costs of litigation have led the lawmakers and courts to formally incorporate child custody mediation into the Maryland legal system.  Courts throughout Maryland are ordering mediation on a regular basis in many types of disputes. Mediation is the future of solving all various disputes, from big-business construction disputes, to international conflicts over human rights, to resolving neighbor feuds.  Mediation is fast-becoming the regular process used by employers to address employee disputes and is increasing in popularity in school systems to solve conflicts between student-peers.

Nowhere is Mediation more appropriate than in the area of family law in Maryland, where emotions get in the way of rational financial choices and decisions which affect children, and the relationship of the parties must continue despite the separation or divorce.  Separation and divorce are gut-wrenching personal events which can cause the most ordinary aspects of daily life to feel overwhelming. The desire to retaliate against your spouse may be compelling.  An attorney with your substantial retainer in his or her hand (which is likely a loan from parents, or your children's college fund monies or a check written on the home equity line of credit) is obligated to advocate your legal position of the conflict zealously and to formulate strategies to "win" your case.   Often those strategies are designed to frighten your spouse, by taking positions which you would not be likely to take in a face-to-face conversation with your spouse.  This level of zealous representation is ethically required of your attorney.

Hardball strategies are absent in Divorce Mediation. Tough strategy positions may produce desired results in a setting like threatening to walk out of a car dealership as a bluff to get a lower price on a new car. After all, there's always another customer or another car.  This is a dangerous strategy style in family law conflicts, where parties may feel vulnerable about their relationships with children, or housing costs and the ability to pay bills threatens a family at its most basic level.  If one party "walks away" from payment of bills as a strategy to induce fear, the reaction of the economically desperate spouse may produce completely unrelated, irrational actions in retaliation.   "He won't pay the bills?  Well then, he won't see the kids," is a common response where the economically desperate spouse has no other leverage.  It may be that the “no-bill paying” strategy was formulated to evoke that desperate response, so that spouse who threatens to or does withhold  children appears to be a bad parent to bolster the other's custody or visitation position.  In that example it is important to note that the refusal to pay the bills arose from Dad's lack of leverage relating to the children, in a situation where Mom was a stay-at-home mother, and Dad worked long hours which necessarily meant his time and experience raising the children was limited.   In this example, both spouses have taken strategic positions out of the fear they feel about fundamentally desperate, emotional issues.

The Effect of Divorce Mediation in Maryland. Many, if not most, Maryland family law attorneys would refuse to endorse such strong-arm tactics.  Most reputable attorneys would advise reasonable action and against destructive acts especially where children are involved.  However, advice given from attorney to client in a confidential setting is not equal to the effect of face-to-face debate and negotiation between parents who do not have the buffered bravado derived from having an attorney who will have to answer to another attorney for withholding children or refusing to pay household bills. Parents who are living apart may have "forgotten" what it was like to have to answer to the person with whom they raised their children and shared a household.  One often hears that when one estranged spouse asks the other something like, "Are you really going to let the telephone be disconnected" the spouse often replies "tell your lawyer to call mine" and thus hides behind the litigation system.   What a spouse often means with this response is "I don't feel like I can explain my position to you directly without us having our usual name-calling, ugly fight."  Enter, the separation / divorce mediator, whose forum requires direct parent-to-parent communication in a controlled and structured way to produce logical and practical results.

Strategies in Divorce Mediation.  To a divorce mediator, all that destruction and fear-injection is a waste.  It is unreasonable not to pay bills and unreasonable to deny children their parents. The divorce mediator is trained to focus parties away from extreme positions to their actual positions.  In a divorce mediation session, the mediator, through questioning, will have the parties walk themselves through the consequences of their actions in a "thinking-out-loud" manner.  This freedom to think out loud in a forum where the communications are confidential often produces more practical and logical results.  Even if the same process took place in a settlement meeting with both parties and both attorneys, each party has a natural distrust for the opposing attorney's persuasive arguments and each attorney has a duty to his or her client not to point out the weaknesses of his or her clients position openly. 

The divorce mediator will focus instead on the practical aspect of working out bill payments and visitation schedules until an agreement is reached.  The mediator's focus is upon lessening the fear of the parties. People infused with fear cannot sleep or eat.  Less fearful people are better parents and employees. Divorce Litigation is driven by a "win-lose" goal, and the infusion of fear is designed to meet that goal to obtain a favorable settlement for his or her client.

What is a favorable settlement?  But what is a favorable settlement? If a spouse frightens the other to accept less alimony, but the spouse needing the alimony is then unable to secure housing, where will the children sleep when they are with the homeless spouse?  Where is the win and the loss?  An upset "loser" parent creates upset in their children, and children who sympathize with the "loser" parent may retaliate against the "winner."  How valuable was the "win" then?

It is this sort of "reality check" process that truly is the hallmark of the neutral, skilled mediator. In a separation / divorce mediation, the parties will have to look at each other and see the pain of a parent who misses a child or the terror in the eyes of a spouse without financial security.   For example, Mom might take the position that she will agree to switch weekends to permit the children to attend Dad's family party this weekend only if “Girlfriend” is not permitted to attend.  Dad's lawyer might say for purposes of keeping a situation calm, "hey, keep Girlfriend away from the family party."  Thus, Mom's strategy is effective (or is it?), and Dad may be forced to "agree."  In reality, Dad is angry and resentful.   Two months later, Mom's important family event lands on Dad's weekend.  Dad's position?  Probably something calculated to evoke emotional pain from Mom, like "Girlfriend and I made plans to take the children to Hershey Park," as spiteful retaliation.

The Focus of Divorce Mediation. If the identical scenario  occurs during mediation, a skilled, neutral mediator might ask Mom, in response to the conditions she seeks to impose on Dad's romantic life, "Mom, do you have any important family birthdays, reunions occuring this year?"  Or "Mom, what is the children's relationship with Dad's family?" and so on, shifting the focus away from the painful topic of "Girlfriend" and towards Mom's own family interests and towards the most rational focus: the children's needs.  Girlfriend's interaction with the children may be a relevant topic of discussion for a variety of reasons, however, it is likely that Girlfriend's absence from Dad's family party doesn't significantly alter Girlfriend's interaction with the children.  Therefore whatever Mom's concerns are about Girlfriend are not solved or even addressed by the strategy of Mom's leveraged position based upon the luck that the party fell on Mom's weekend.  Mom's short-lived, short-sighted "victory" instead compounds the resentment and comes back to bite her in the proverbial rear-end, when her children cannot attend her family party.

In Separation / Divorce Mediation in Maryland and elsewhere, the focus of negotiations is on re-construction of lives and the transition of the family from its intact form to its new form after separation or divorce.  The focus is gaining control of the emotions of the children, finances, schedules, living arrangements, etc., all the practical aspects of life which we usually take for granted.

Attorney-driven negotiations.   Initially, handing your new and overwhelming problems over to an attorney will offer you some relief from the burden of communicating with an estranged spouse or dealing with the details of getting separated or divorced. However, if every communication to your co-parent about dental visits, or about a threat of a lapse of car insurance will then make two stops along the way, to the two attorneys who are handling your problems.   The cost of the discussion between the attorneys alone about the car insurance may actually be more than the premium due!  Even if parents learn that bills and dental appointment require direct communication between them, certain things, especially the gathering of information about finances, is processed through the spouse-to-attorney, then attorney-to-attorney, then attorney-to-opposing-spouse money-sucking line of communications.  On top of that, it may take some time to make contact with your busy lawyer, who then must get in touch with another busy lawyer, who in turn has to discuss the matter with the opposing spouse. In the interim, the real estate tax bill may have become due or the roof has sprung a leak!  The spouse-to-attorney, attorney-to-attorney, attorney-to-opposing-spouse communication process then starts all over again.

Working in combination with both a Separation / Divorce Mediator and an independent lawyer.   It is often difficult to reach your attorney.  If your attorney focuses mainly on family law or does other litigation, that attorney is often in the courthouse.  Many times attorneys are forced to wait hours for a case to be called (and have to bill their client for this time, hence the large legal fees).  Your attorney may not be able to make or take your call while at the courthouse, due to these circumstances beyond his or her control.  This doesn't mean that you have a bad lawyer.  Your attorney is likely working on your case at a normal pace.  The over-burdened legal system is simply not known for speed or economies of time. Going to court means waiting time and travel time fees. Separation / Divorce Mediation is known for the speed in which matters are resolved. 

There is no travel time or waiting time. Moreover, although you may have felt that hiring an attorney would take the problems out of your hands, the reality is that you will still be gathering the documents and information which your lawyer requires to settle or litigate the case.  You also end up paying your lawyer (as does your spouse, simultaneously) to explain how your bills, household, and children operate.  But your spouse already has full knowledge of all of those details, with very little excess discussion.  Thus even though you may each have lawyers who are settlement-minded and available for joint meetings to resolve your conflicts, so much of settlement of a marriage dissolution has to do with facts and details which the parties have lived with for years.  Who gets which couch?  How will pets be divided?  What happens on afternoons when one child has soccer practice and the other has piano lessons?  Separation / Divorce Mediation, by cutting out middleman, and utilizing the parties who are already experts as to the details of their daily lives, provides the more efficient forum on most issues.

Is Separation / Divorce Mediation Appropriate for You?   There may be issues for which you don't feel equipped to negotiate with your spouse.  You may feel ill-equipped to negotiate issues relating to business interests to determine each spouse's share but does that mean you can't work out a visitation schedule for your children?   Might one aspect of your conflict be delegated to an attorney while other details are handled through mediation?   Although a separation / divorce mediator may be competent to handle such a negotiation, bring in a neutral expert to help the parties, a party may feel incompetent to negotiate a particular issue which must then be referred to an attorney. 

Separation / Divorce Mediation first?  There is a men's clothing retailer whose advertising slogan is "An Educated Consumer is our Best Customer."  In general, people are more confident, effective negotiators when they are better-educated about the subject matter.  This begs the question "Better educated about what?"  The law? The options available to them?  The costs?  "Better-educated" about everything is the ideal.  Emergency or critical circumstances definitely are best brought to a lawyer first. Absent such extremes, the decision of where to begin depends on the individual and his or her comfort level.  Ethical separation / divorce mediators in Maryland should stress the need or opportunity for legal counsel to assist in the negotiations and agreement formation. Ethical lawyers should present options which include the use of mediation where possible to keep costs reasonable. Thus, in theory, it shouldn't matter where a couple starts, so long as the professionals and the parties understand that the separation and divorce process is best approached in consultation with an attorney and a separation / divorce mediator, as well as other relevant professionals, such as accountants, financial planners or psychologists, as the matter may require.  Minimizing harm to children, the parties and the family finances, to produce a fair, peaceful, and practical resolution should be the goal of the parties as well as the professionals who offer themselves to families to take them through a process fraught with emotional underpinnings and consequences.