A CASE FOR MEDIATION

The adversary system has had its day in court. Now it’s time for something new.

IT IS ANOTHER DAY AT THE OLD RED Courthouse. Fourteen couples in various stages of decoupling wait their turn. They are primed and paying for a custody fight, but something new has happened: here they are, waiting to discuss the custody of their children with a spouse who has become an enemy. Rather than fight to the death of their marriage, using their children as pathetic pawns in a sorry endgame, they have been asked to participate in a new legal and social experiment: mediation.

Preliminaries over, the fourteen couples are escorted into the courtroom of Family Court Judge Carolyn Wright. She speaks for a moment of new beginnings, of opportunities to “put away past fears and hates and focus on your children.” And then she asks:

“How many of you out there love your children?”

Every hand goes up, and Judge Wright asks another question. “How many in this courtroom don’t love your children?” This time, only Judge Wright raises her hand.

“I can’t possibly love them,” she says. “I don’t even know them-and that’s precisely my point. If you want somebody deciding their future who doesn’t even know them, fine-let’s go to trial. But if you want someone who loves your children to decide what’s best for them, then give mediation a chance.” The judge smiles confidently. “If it doesn’t work, you can always have your day in court.”

Two years ago, if a Dallas judge had promoted mediation as an alternative to the adversary system, the legal community would have come out fighting.

But today, things are changing. A difficult economy is making protracted litigation less affordable. Sensitive family court judges are championing the cause of children, the true victims of divorce. Three out of the seven Dallas family judges use mandatory mediation. The Texas Legislature has finally responded to the changing reality of working moms and nurturing dads, enacting strong joint custody legislation.

Some argue that these changes are illusory, that mediation can’t possibly work in the vexatious atmosphere of everyday divorce. Others say there’s a new energy at Old Red-a spirit of less combat, more cooperation-and it’s changing the way many of us get divorced.



IN PRINCIPLE, THE IDEA SEEMS SIMPLE ENOUGH-TWO people sitting in a room with an impartial mediator, communicating with each other, working toward an agreement for the betterment of their children.

For Dale and Lisa Lett, it took nine years of courtroom conflict to get them there. Even after a jury awarded Dale custody of his three children, the war raged on.

With each of Lisa’s visitations came a separate skirmish. The children were unwittingly engaged as spies, debriefed upon their return, forced to inform on their mother as to any fault in her caretaking. In fact, both sides used the children, making them pawns in the dual vendetta that was once a marriage.

“We must have wanted the fight.” reflects Dale. “The kids gave us a way to do it-the courts gave us a place to do it.”

By 1987-when their oldest boy was having discipline problems with his female teachers: when their youngest child was so withdrawn she barely spoke; when their middle child became a “hurried child.” growing up too fast-Dale and Lisa were back in a Dallas courtroom. This time, Dale wanted to terminate Lisa’s visitation rights altogether. But this time, rather than rely on the law’s brute power, the judge ordered mediation.

“No one thought it would work,” says Lisa. The first session didn’t; it was more of a shouting match, with both parties ventilating past hurts and wrongs, accusing, indicting, releasing. By the session’s end, the mediator had called a halt to all recrimination, telling Dale and Lisa that blame and fault, while appropriate to the courtroom, had no place in mediation.

By the third session, Dale and Lisa had coffee together for the first time in ten years. They found that both of them felt victimized by the court system. They had abdicated control over their lives to judges, juries, lawyers, and expert witnesses-and each had paid $25,000 in legal fees.

In time each gained empathy for the other’s position. Neither could deny that the children loved them both and needed them both in their lives. It took five sessions, but Dale and Lisa finally reached an agreement. Nothing fancy, just a simple visitation schedule that they all could live with.

Today the war is over; the cease-fire has held. Dale and Lisa are friends again. Their children, divorced from conflict, are free to move between both parents’ homes. Emotionally, they are strong and secure.

Since the early Seventies attempts have been made to reduce the sting and stigma of divorce. First came no-fault divorce-divorce made easy and blameless for those willing to bury the hatchet and not hold the other party at fault.

Later, with mothers turning to the workplace and fathers turning inward, the Texas Legislature responded by enacting gender-neutral statutes, bringing an end to years of mother-bias in custody cases. Fathers who were once discouraged from seeking custody came to the courthouse ready to fight.

In this sea of litigation stood a warning beacon, the psychological research that empirically confirmed what most suspected: divorce emotionally traumatizes children. “The sad truth is that children are hurt by litigation,” says Dr. Bob Gordon, Dallas psychologist and expert witness. “Children blame themselves for fighting. Their lives become uncertain. They have adjustment problems, and they fear abandonment.”

Perhaps the Texas Legislature has finally heard the cries of these children. In 1986, legislators made it the public policy of the state to encourage the resolution of disputes through mediation. A new joint custody statute now encourages parents “to share in the rights and responsibilities of raising children.”

Certainly, mediation is not for everybody. The courtroom can be a great arena for catharsis-a place to vent anger, to publicly denounce, to give a marriage its proper burial. “But if we can redirect the fight away from children,” says Dallas Family Court Judge Sue Lykes, “letting parents argue over cars, IRAs, pots and pans, then mediation has accomplished something.”

Making “a separate peace” for children of divorce seems to be on the agenda of many on the Dallas Family Court bench. Some judges simply recommend mediation; others mandate it in every dispute involving custody and visitation.

But some lawyers are still critical of mediation, claiming unqualified mediators are muddying their cases. They believe that mediation is trying to solve a problem that doesn’t exist, since lawyers already settle 90 percent of their cases out of court.

Despite all the controversy. Dallas does appear ripe for mediation. With the economy continuing to struggle and family lawyers billing at $250 an hour, a custody battle has, for some, become the last stop before bankruptcy court. And mediation, when coupled with joint custody, offers an attractive compromise to the winner-take-all crapshoot of a fight for sole custody.



THERE’S A SMALL ISLAND OFF THEcoast of Chile that has only onedivorce law: anything that makes children cry is illegal. Perhaps the spirit of thatlaw is embodied in the nouvelle divorce withits focus on mediation and joint custody.Although many lawyers still rail againstmediation, they have yet to prove its harm.

And if mediation doesn’t work, as JudgeWright said, “you can always have your dayin court.”

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