A VIEW FROM THE BENCH- Why it’s better to mediate than litigate!

As a Family Court Judge I wondered every day why litigants gave away their power to lawyers and judges.

           So often there is no real conflict. That is, no domestic violence, no addictive behaviors and no reason why two parents can’t co-parent their children. And yet I would have parents and their lawyers battling over the title of “primary custodian”; setting a trial, and engaging in endless discovery to find some little piece of evidence that will be the “aha” moment at trial.

The end result is that no one wins. Whatever the ruling, the level of acrimony created by litigation has destroyed any chance of a peaceful relationship of co-parenting where the litigants (by that I mean the parents) work together in the best interests of their children.

judges gavelWhen blood has been left on the floor of the courtroom by the lawyers at the request of their clients, there is no delete or reset button. There is no blue circular arrow to redo what has been done. Parents are left with the words that were uttered hanging in the air. Behavior between the parents that may have been ignored, or even forgiven during the relationship is dragged out for the judge. Wounds may have scabbed over. They may have even healed. But lawyers are engaged to crack them wide open to win.

The judge is not impressed with hearing about conduct that was apparently forgiven or overlooked within the relationship if it was not criminal or harmful to the children. Nor does it impact the Court to hear about unfaithfulness, when the relationship continued after discovery of the infidelity.

The Court is however, perplexed at how two parents can fail to see how much better off they would have been mediating a resolution to their custody issues.

In my post-judicial career I gain great satisfaction in assisting parents in mediating their divorce and custody cases. Their demeanor at the end of a successful mediation is typically touched with grace and kindness, each one leaving with their dignity intact.

Gayle Nathan brings twenty-six years of experience including fours years as a Family Court Judge to every case she handles, whether it’s a mediation or arbitration.

This entry was posted in Alternative Dispute Resolution. Bookmark the permalink.