You’ve heard the saying – all boiling pots must come to a simmer. That’s obviously true,
but how do you turn the heat down?
A divorce can be acrimonious. Of that there can be no doubt. There are lots of emotions
involved and when emotions are involved, rational thought can often be set aside.
Notwithstanding all of this, 70%-80% of all divorces in New Hampshire and Vermont are
settled through mediation. Mediation is one type of several alternative dispute resolution
methods (ADR) that is used to resolve marital disputes.
When I first began to practice law – shortly after Abraham Lincoln became president – a
lawyer had two arrows in his/her quiver. One arrow was marked resolved by litigation. The
other arrow was marked resolve by negotiation. The lawyer’s arsenal was quite limited – you
either called or wrote the other side and proposed something (negotiation) or you went to court
and the judge made the decision.
Today, there are at least four more arrows in the quiver. The first arrow is marked
resolve by mediation; the second arrow is marked resolve by collaboration; and the third arrow is
marked resolve by arbitration. The fourth arrow has a special mark on it – resolve by neutral
evaluation. With respect to the fourth arrow, an independent party looks at the facts and predicts
the outcome from those facts. At that point a mediation or a negotiation often breaks out and the
case is settled in that fashion.
Before negotiating, mediating, collaborating, arbitrating or submitting to a neutral
evaluation, it is wise to know the merits of your case. To know the merits means that you must
know all of the important facts in the case and all of the applicable law. You must assess your
opponent’s strengths and your ability to undermine those strengths. You must develop a good
narrative; that is, you must develop a story line that runs in your favor. Are you able to write
down why a certain result is the fairest result? Do the facts support your thesis?
A marriage is a contract. It is called the marriage contract. As in any contract, some
marriage contracts bear fruit and some don’t. If you look at divorce as a broken contract, you can
often do what others do when business contracts are broken – find a reasonable way to resolve the
matter and move on, hoping for a better deal later.
Settling a divorce is very much a math problem. What numbers go where? Settling a
divorce does not always mend a broken heart, but it does clean out the arteries and allow life to
go on from there.