Mediation is a better alternative than the traditional adversarial route.
I have also been guilty of combining the word “traditional” with “litigation,” only because for a long time, the number 1 choice of action for a dispute, and certainly in a divorce, was “traditionally” litigation. But as I ponder on these words, it irks me more and more to see them together.
Having been raised in Paris, France, and coming from a “traditional” Sephardic Jewish family, I was shocked when I first moved to the United States 30 years ago to hear people so frequently say, “My lawyer says this, my lawyer says that.” My first thought was, “These Americans are crazy!”
- If your cleaner damages a piece of clothing, go to court.
- If you fall on the street, sue the city.
- If somebody wrongs you, call your lawyer.
Why would I have a lawyer? Do I need to go to war using my lawyer as my shield – a shield which strikes my enemy? One may argue that in this type of war, there is no physical harm and no killing, but isn’t emotional harm just another form of destruction? And I am not even taking into account the amount of financial resources spent.
Is the adversarial way really the best way to a good outcome?
- When your child has a disagreement with another child in school, do you suggest he attack him verbally, to win by bullying him and make him feel bad?
- If you have a disagreement with someone at work, in a store, with a friend, with your spouse, is the best way to handle it to hit where it hurts? Do you need to find the other person’s weak points to make yourself feel stronger and win?
Wouldn’t a more positive approach be:
- Listening attentively?
- Taking turns speaking without interrupting each other?
- Trying to put oneself in the other person’s shoes?
- Giving the parties a place to make their decisions together?
- Is there a place for litigation? Certainly, there is. Major fraud, malpractice, and criminal activity require litigation. Conflicts with your spouse, children, siblings, relatives, roommates, friends, even business partners, don’t necessarily profit from litigation. So why do we continue to refer to it as “traditional”?
I could see using the word “traditional” in the manner of our elders. In many cultures – Asian, Islamic, and Jewish, to name a few – the sense of family is very strong. The head of the family – a father usually – will often step in, talk to all involved, and help them come to an agreement. If not the father, an uncle or a close family friend will take on that role of mediator. In our society, with the families often being spread out in different places, we are not used to as much involvement by the elders, but there are professional mediators that can fill that “traditional” role and help people in conflict.
So do you see where I am going? I am truly hoping that as more people learn about the mediation process, the word “traditional” will merge with “mediation,” and litigation will only become a recourse if all else fails.
Comments & Replies from Social Media
Excellent article. Changing mindsets toward divorce and conflict resolution may mean that “traditional” is evolving from litigation toward mediation as a preferred service of choice for resolving conflict. Although it sounds futuristic ‘conscious uncoupling’ seems the most likely way things will go with changing social attitudes as time evolves. Perhaps one day soon it too will be deemed “traditional”. Let’s endeavour to do what we can to make it happen.
By Kenneth Lane (via LinkedIn)
The article makes perfect sense Jennifer. It does seem as through discussion and level headed conversation, the dynamics of this highly volatile act would be best for all. Couples need to have an opportunity to get things said, clear up misunderstanding, ask for &/or give forgiveness. I am not saying this won’t come from opposing attorneys “acting” as the representative for the sake of their client, but isn’t one predominant conditioning of attorneys to win?
By Steve Westberg (via Linkedin)
What a lovely piece you wrote about Why Mediate? And Why Litigate? It can be applied to every walk in conflict in our lives. I hope my clients, those who are suing over an animal, read this and chose a more peaceful means of resolution. You can always litigate, this article speaks to how mediation enables you to rescue the people and the animals. Bravo Jennifer.
By Debra Vey Voda-Hamilton (via Linkedin)
Very well said, Jennifer. Only in the good old United States of America! After all, we are the Wild, Wild, West. This type of conduct is not “normal.” It is our “normal.” Does that make it good or right? Let me now repeat what I had in a bubble in a recent Bitstrip cartoon of mine: “What makes you so sure that you are correct about anything?” Sadly, the typical answer I received was “EXPERIENCE.” That’s great! So, if we have years of experience doing something a certain way, that means it couldn’t have been done in a better way? I am not talking theory, by the way. I am talking about critical thinking. While nothing is ever perfect, do we seriously believe that by virtue of our experience, we can’t improve a product, service, perception, etc.? I don’t know.
By Mark B. Baer (via Linkedin)
Er, not only in the USA. I guess litigation is considered more acceptable than force. And some people can’t get beyond those two options to consider whether there are other and better ways.
By Cheryl Simes (via Linkedin)
This is a great question, Jennifer. I don’t understand why using litigation as the first course of action to resolve family disputes became the norm, but we know better now. It needs to be the last resort, not the first.
By Andrea Vacca (via Linkedin)
jennifer safian. divorce and family mediator divorce and family mediation upper east side of manhattan (nyc) new york, ny (212) 472-8626 firstname.lastname@example.org connect on