Sometimes we, the lawyers, are ready for mediation, but our client is not.  We have assembled our asset division and support worksheets, have run disposable income calculations and established a desired parenting plan.

Only one problem:  Our client is emotionally not ready to partake in the process!  And if mediation fails, the litigation process will be time consuming, costly and emotionally difficult for the family.

A request for a divorce can be quite a shock.  A person may have had no idea things were amiss in the marriage. Being unexpectedly confronted with the end of a marriage often causes a person to be afflicted with the same emotions as learning of an unexpected death.

Denial is first.  There must be something that can be done to fix the marriage.  Perhaps counseling, a romantic vacation, or a restructuring roles and responsibilities.  But when one person has made up their mind, I have found "fixes" only delay the inevitable.  This is not the time to have a domestic relations mediation as one of the parties simply will not cooperate because they have not given up on the marriage and believe it can be salvaged if only they tried.

Once it has become apparent that the marriage is not salvageable, anger will often set in.  Anger is a very strong emotion and will overwhelm all logic and reasoning ability.  Anger over the death of a marriage will override critical thinking and the ability to make rational decisions based upon objective facts. This is not a good time to attend mediation as a person may see the mediation negotiations as an opportunity to punish, rather than being seriously engaged in reaching a resolution.

The final three stages of the grief process, bargaining, depression, and acceptance,  are all ripe for constructive settlement negotiations in my experience.  Once a person has confronted the reality of the divorce and moved passed, or avoided, suffering through anger, a person should be able to become reasonably engaged in the divorce mediation, whether they want to be there or not.

Sometimes we just have to wait and let our clients work through their issues before we will have a reasonable chance of reaching a settlement. Sometimes it takes the litigation process that will cause a person to burn through their denial and anger at which point they will be (perhaps reluctantly) ready engage in settlement discussions, albeit with better mental acuity. 

So the moral of this missive is that good lawyering involves more than simply working up the facts of our case, it also involves being sensitive to the emotional needs of our clients at an extremely difficult time in their lives.

Guy Vitetta

Charleston SC