While the uncertainty of relationship conflict can be challenging, our response to it doesn’t have to be costly. In fact adversarial processes can and often do escalate the conflict by unnecessarily placing parties against each other in an expensive, accusatorial, and highly stressful struggle to win. In most situations, people are much better served financially, emotionally, personally and socially by a non-adversarial approach. Mediation is the optimal approach to mending relationships strained by a lack of communication and understanding.
Mediation is a facilitated conversation between disputing parties. Within a safe and supportive environment, bound by confidentiality people are invited to speak genuinely and be heard and understood without judgment. This process provides the critical foundation needed to clear up misunderstandings and dissolve any sense of mistrust and alienation that can exist when people are polarized.
Mediation is a process that puts the parties in the position of the primary players, in charge of every aspect of their agreement-rather than lawyers. With the assistance of a compassionate and skilled mediator, both parties are empowered to speak genuinely about what is important to them both in individual coaching sessions and in conversations where both parties are present. The process enables anger, fear, betrayal and disappointment to be metabolized, transforming the conflict into mutual understanding and closure. Going through this experience is critical to reaching a meaningful and lasting resolution.
Everything that happens in mediation arises against our social backdrop of defaulting to litigation as the traditional tool for resolving conflict. Litigation often brings hollow victories, as many human needs are not addressed. Instead, feelings and concerns are filtered through a narrow legal relevancy screen, or suppressed entirely.
A mediator is a neutral and impartial person. Neutrality means that one does not have an interest or stake in the outcome. Impartiality means that one does not take sides. Both are essential to the process, and for retaining the confidence of both parties. The mediator is skilled at helping people come together in agreement. The mediator also writes up the agreement that is memorialized in documents that are presented to the court.
LITIGATION (COURT MODEL):
Litigation is not designed for amicable resolution of conflict. Instead the litigation system is an external source of power - used to forcefully obtain a result from a Judge through a complex legal process. The traditional method of attempting to resolve disputes through the court system utilizes an adversarial process, and involves the application of the Colorado divorce statutes and Rules of Procedure to the party's case. The statutes and rules are somewhat inflexible. The judges in Colorado expect parties to know and use the rules and statutes, even if they are non-lawyers. Even for lawyers, the rules and statutes are complicated and difficult to use. The adversarial process creates a factory-like mechanism for handling divorces. There is only “one-size” for all divorces, without regard to your particular needs and interests. People often use lawyers for this process. Lawyers have an obligation to follow the rules and statutes and attempt to fit your facts into the mold of the legal process.
Lawyers typically take their marching orders from clients when they are gripped by fear or anger (the normal experience of most people going through divorce). Zealous advocacy is often characterized by bullying and is used to justify “scorched earth” litigation tactics; to get the largest piece of the pie for the client, at great costs, both financially and emotionally. Threatening to go to court is common, and is the default position if one party doesn’t get what they want.
The adversarial process defines each party’s interests in terms of “rights and responsibilities.” This pits the parties against each other, unnecessarily. The spouses become litigants in a system that itself creates tension and conflict. Often, the ability to communicate, trust, and co-parent with the other spouse is destroyed by the process.