It's the Heat

Although it was a rarity I remember when my brother, a New York City Police sergeant would tell wild stories about crime in the heat of the summer and that such weather brought out the worst in the criminal element causing him to spend many a summer in overtime filling out arrest reports. The rarity was that my brother now retired, would actually tell us anything about his job. I recall not being that surprised since my partner who makes his living defending these very criminals was often quite busy in the summer. Thus bringing us again to the matrimonial area which also tends to bloom in the summer. The heat brings out the worst in most people so it shouldn't come as a surprise that married couples will fight more during this season, leading them of course to their local divorce lawyer, like yours truly.

I had a very interesting conversation with another matrimonial attorney who champions mediation over litigation much like myself. She told me about a case where the parties who could barely afford it when they were together were having difficulty with the statutory provisions for child support. The couple was actually in agreement that the non custodial husband, should pay less than the statute required, but the wife's attorney was adamant about adherence to the statute. The law allows parties to tailor the terms of the contract themselves. As long as there is agreement, virtually anything goes. Yes, child support can in fact be waived as long as it is worded correctly in the agreement, taking into consideration other support obligations of the parties. When an adversary gets involved, and I throw myself into this category when I am playing my zealot role, it is expected that we will do the best for our client. Clients come in to meet with me and routinely ask me if I'm stuff and whether or not I can fight hard for them. This clearly is the type of client not interested in mediation.

The question remains, however, How do we get more people interested in mediation? I think the answer is through education and sometimes hard experience with the system. The judicial system is not user friendly. No judge wants to hear any of the cases which come before him/her. Judges want people to come to their own agreements without their help. Judges are great believers in mediation, surprisingly, since they would be out of a job if everyone mediated.

People involved in mediation must remember to bring an open mind to the table. If either party is set in their position mediation will not work. Flexibility is the key to mediation, as is the need to leave emotion at the door. Anger, guilt and hurt are all emotions which will also doom a mediation session. Clients are forever screaming about lawyers making all the money in nasty divorces, but what they forget to realize is they are the fuel which runs their attorney. I have never failed to settle a case where both clients had enough of the system and were desirous to settle. That may have encompassed firing an attorney or two in the process, but where the parties are anxious to talk settlement occurs.

As the temperature rises and tempers flare, think of divorce mediation as the cool pool of reason, a cheaper and much more civilized alternative to litigation.