In states where divorce outcomes from a judge are predictable and bearable, mediation is a common alternative to litigation. A lot of popular articles and books have been written promoting the idea that if hundreds of thousands of dollars are not spent on litigation, everyone in the divorcing family can be better off. Very few articles, on the other hand, are devoted to the question of whether it would make more sense to stick together. In October 2014 Amazon.com offered 64 books in response to a query of "marriage reconciliation" and 2355 relating to "marriage counseling". Titles related to "divorce" numbered 28,999.
We interviewed Alan Hawkins, Professor of Family Life at Brigham Young University. He pointed to research finding that roughly 30 percent of people going through the last stage of a legal divorce still wanted to save the marriage. Mightn't those just be the defendants who hadn't wanted to be sued? "No," said Professor Hawkins. "In about 10 percent of cases it was both the husband and wife." He noted that these people do not get any help from the divorce industry, which assumes that everyone who talks to a divorce lawyer should probably get divorced: "Lawyers have trouble believing that these people [who have second thoughts] exist."
Our interviews confirmed what Professor Hawkins told us. Lawyers did not describe counseling patience, forgiveness, or reconciliation. To the extent that potential clients decided not to sue their spouses it was because of a lawyer saying that a divorce lawsuit would not be profitable, not due to a lawyer asking "Are you sure that you want to do this to your kids, your spouse, and yourself?" Lawyers reported counseling alimony and child support plaintiffs to have patience with regard to seeking paid employment; they didn't counsel patience when it came to filing a lawsuit seeking to sever the ties between the children and the defendant.
What could cut the divorce rate? Professor Hawkins talks about therapeutic and educational interventions when couples are "in crisis" so as to "maximize the chances that people are thinking clearly." He and his colleagues also work on education on how to be part of a couple that can start as early as preschool ("youth relationship literacy education") and continue through marriage with "marriage maintenance education that focuses on fighting relationship entropy." How is that different from marriage counseling? Hawkins is the co-author of "Facilitating Forever" (National Marriage Project report, 2014) which explains that this is "a prevention-oriented curriculum of ideas and skills on how to sustain healthy romantic relationships."
We interviewed Daniel Felix, a professor of clinical family medicine at Indiana University, who said "In a majority of cases people can work through issues and learn skills to improve the quality of their marriage. Not every marriage should be saved but more marriages could be saved than are." By "saved" does that mean going back to the 1950s "staying married for the sake of the children" that American adults decided in the 1970s that they no longer wanted to do? "No," responded Professor Felix. "By 'saved' I mean 'living happily together.'"
Many of the attorneys that we interviewed practiced mediation as well as litigation. "They're entirely separate practices with separate clienteles," said one attorney. "The person who comes to me for mediation is the kind of person who would have 'stayed married for the sake of the kids' back in the 1970s. You're talking about someone who cares more about her children than about money. The people who come to me wanting to start a divorce lawsuit are people who care more about money than about their children." An attorney whose practice is exclusively litigation confirmed this perspective: "A person's decision to divorce is primarily financial. Of course there are people who are concerned about the kids, but they are not very common. Sad to say it is all about money here in the U.S."
Mediation costs reported by our interviewees were between 1 and 5 percent of the typical fees in a litigated divorce. "It is a mistake to look at the initial costs," one lawyer cautioned. "Because people who start with litigation keep litigating until the kids turn 18. Attorneys arguing in front of a judge is the dispute resolution mechanism that one parent chose and that becomes the only one that the two parents have. So the legal fees for the first trial are likely just a down payment."
Mediation is typically handled by family law attorneys. Remember that when people get married in the U.S. they are subjecting themselves to the court system to obtain a divorce. A judge can reject a mediated agreement for a variety of reasons. For example, a couple might agree that the children's time can be split 50/50 and that, due to comparable incomes, no child support will be paid. A judge who is philosophically opposed to shared custody can simply refuse to approve the agreement and grant a divorce. A lower-income spouse might be too proud to take alimony, but a judge can say "I'm not approving any agreement without alimony." A local divorce attorney is the only person competent to predict what a judge will approve.
Mediation typically takes 3-6 months and costs between $5,000 and $25,000. Why can't it be done in a week? Parties will need to assemble documents and financial statements. Even when an agreement is mediated by a competent neutral attorney, a party may wish to have his or her own attorney review the agreement prior to signing. States where litigation costs are high, e.g., Massachusetts and New York, tend to have higher mediation costs and longer divorce agreements.
Mediation and cooperation of all forms seem to be common in states where children spend close to 50/50 time with parents and child support awards are limited to covering basics. Child support that ends at age 18 encourages mediation as well. "Mom can't get everything that she would ever want by court order here," one attorney noted, "so she can't adopt a scorched Earth policy toward Dad unless she wants to pay for the kids' college tuition herself."
Colorado offers only moderately profitable child support and custody tends toward 50/50. "The biggest factor in whether a case will be mediated or litigated is the temperament of the petitioner [plaintiff]," said one Denver-based attorney. "There are very few cases in which rolling the dice with the court is actually sensible. However, for petitioners with personality disorders, divorce triggers their childhood vulnerabilities. They're unable to compromise. They seek out attorneys who are aggressive and tell them that they're going to win. Combine this with judicial discretion, which means that it is unknown who is going to win, and you've got a formula for going to trial." Is it really a sign of mental illness for a person to hire a lawyer and aggressively pursue what could be millions of dollars in tax-free cash? "If the cash entitlement is not subject to judicial discretion," was the response, "typically even the biggest financial case can be settled. Where even rational and mentally healthy people do go to trial is where it is a completely win/lose situation."
Our interviewee in Alaska, a state with a presumption of 50/50 custody and with capped child support, said "Who could be anti-mediation? My job is not to create more acrimony between two parents who have to work together to raise this child for some years to come."
Minnesota does not favor shared parenting, but the cash profit from obtaining primary custody is limited by a cap on child support revenue at $22,596 per year for a single child. Litigants can fight over children, certainly, but a custody victory won't yield more spending power than going to college and working. We attended a November 2014 conference talk by Stephen Erikson (ericksonmediation.com), one of the nation’s most experienced divorce mediators. He noted that “the court system creates a conflict over money and no incentive to end the conflict.” It is an adversarial system that quickly gets vicious because “courts teach fighting” and it doesn’t work well for divorce because “family problems are more complex [than the typical contract disputes for which courts were designed].” Couples who mediate are, according to Erikson, opting out of the child support system about 75 percent of the time. “They will fund a joint account in proportion to their IRS 1040 incomes,” said Erikson, “and pay the child’s direct expenses from that account.” Neither parent then looks to the other for payment of rent, food, and other household basics.
Who might reject mediation, even in a state where there isn't much to gain via litigation? A divorce litigator pointed us to a 2011 book Splitting: Protecting Yourself While Divorcing Someone with Borderline or Narcissistic Personality Disorder, by Kreger and Eddy, includes a table on page 113. The authors say that people with borderline personality disorder represent a deep pool of "high-conflict" people coming into family courts and lined up personal characteristics with what the court offers:
Other attorneys agreed, with a typical comment being "the worst clients you could ever have [are women with borderline personality disorders]. I run from them. Everyone becomes the enemy."
Mediation is uncommon in the "winner-take-all" states where it is typical for one parent to get the house, the kids, the cash, and the loser's income going forward. In theory the parent who is on track to lose everything should be willing to give it all up voluntarily in mediation, thus saving hundreds of thousands of dollars in legal fees. Why would they behave irrationally? Thinking Fast and Slow, a book by the Nobel laureate Daniel Kahneman:
The sure loss is very aversive because the reaction to a loss of $900 is more than 90% as intense as the reaction to a loss of $1,000. (p. 318)
Many unfortunate human situations unfold in the top right cell. This is where people who face very bad options take desperate gambles, accepting a high probability of making things worse in exchange for a small hope of avoiding a large loss. Risk taking of this kind often turns manageable failures into disasters. The thought of accepting the large sure loss is too painful, and the hope of complete relief too enticing, to make the sensible decision that it is time to cut one’s losses. (p. 318)
Now step into the shoes of the defendant in the same case. Although you have not completely given up hope of a decision in your favor, you realize that the trial is going poorly. The plaintiff’s lawyers have proposed a settlement in which you would have to pay 90% of their original claim, and it is clear they will not accept less. Will you settle, or will you pursue the case? Because you face a high probability of a loss, your situation belongs in the top right cell. The temptation to fight on is strong: the settlement that the plaintiff has offered is almost as painful as the worst outcome you face, and there is still hope of prevailing in court. Here again, two emotions are involved: the sure loss is repugnant and the possibility of winning in court is highly attractive. A defendant with a weak case is likely to be risk seeking, prepared to gamble rather than accept a very unfavorable settlement. (p. 319-320)
Most of the high-stakes states further encourage litigation by ordering the higher-income defendant to pay the lower-income plaintiff's legal fees. The plaintiff literally has nothing to lose by taking a case all the way to trial.
What does mediation look like in a typical high-stakes winner-take-all state? A Massachusetts litigator put it this way: "The Legislature and Probate Court judges make it essentially impossible for mediation to work where there are children involved. We have a mommy-take-all system and fathers have trouble voluntarily giving up their parental role and agreeing to become a 'secondary parent,' even if they know that is the likely outcome at trial. There are things that a judge can do to a child that a parent will not voluntarily do via mediation or settlement." Her perspective was confirmed at a screening of the movie Divorce Corp. in Waltham, Massachusetts, attended by about 100 people earning their income from the divorce industry, either as litigators or mediators, plus 100 laypeople with an interest in divorce.
One of the film's points is that money drives individuals' perception of fairness. If you're getting checks every month from a system, that's a "fair" system from your point of view. Were the 200 folks in the audience exceptions to this rule? A $450/hour divorce lawyer said that the film’s examples, mostly from California, Texas, and the Midwest, were ugly but lawyers and judges in Massachusetts were full of integrity and sincerely doing their best for children. The attorneys in the audience nodded their heads in agreement. A mediator criticized the film for not showing that mediation was the answer and that all problems could be solved if the government paid mediators to work in the courthouse. The mediators cheered. A “second wife” who is tired of turning over half of her paycheck to lawyers and a non-working “first wife” suggested that the system could be improved if there were a cap on attorneys’ fees in divorce lawsuits. The defendants in the audience clapped while the lawyers gasped in horror.
The “mediation is the answer” idea was challenged by another mediator, who had been quietly shaking her head. “Mediation as in ‘compromise’ is not rational for a woman in Massachusetts. She’ll be able to get sole custody from the judge 99 percent of the time, and a very profitable stream of child support to go with it. There are very few women who will leave money on the table in order to preserve a cooperative relationship with the father. The only thing that has worked in my practice is getting the father to pay as though the mother were the sole parent, but he’ll take care of the kids half the time. I start my work by having a private session with the man. I tell him that divorce in Massachusetts is not about creating ex-husbands. It is about creating ex-fathers. As soon as his wife decided to divorce him he became an ex-father and that unless his wife is a prison inmate, a Massachusetts judge will give her sole custody. I tell him that he has a narrow window of opportunity to buy his way back into fatherhood by giving the mother whatever cash she wants. If he can’t pay her off right now in mediation, she’ll be in court next month. She is going to tell a judge convincingly that she is ‘afraid’ for herself and her children. Nobody will care that there was no previous record of domestic violence. The judge will order him out of the house and cut the kids’ time with him back to about a day a week. He will never be able to recover from that first temporary order. Then I sit down with the woman and tell her that she’ll end up with more cash if she mediates because her husband will have to feed just her lifestyle, not hers plus the lawyers on both sides. Typically I can’t persuade her to stay in mediation unless I can convince her that she will end up with more money than if she litigated.”
The litigators said that even when mediation was successful, the work of mediators in Massachusetts was often short-lived. “I worked on a case that was originally mediated. The women had $500,000 per year in income, wanted sole custody, and wanted to move with the children to a foreign country. The father caved in on everything, quitting his job and following her abroad so that he could spend about one third time as visitation. Because her income was so much higher than his and because he caved in on the move, she agreed to share the children’s actual expenses rather than collect child support. It worked great for a couple of years, but then her income fell to about $400,000 per year and she sued him for child support based on the fact that she has sole custody. He makes $90,000 per year.”
A consumer whom we interviewed talked about an amicable and mediated divorce circa 1998. He earned less money than his wife at the time and she was too busy with her legal career and real estate business to take care of the children full time. So they shared the kids and he agreed that she would not pay him child support or alimony, despite the fact that her income was higher than his. The former husband started a business that turned out to be moderately successful while the wife's real estate business suffered from the downturn that began in 2006. In 2007 she sued him for 9 years of retroactive alimony and child support. Legal fees for this post-divorce action consumed close to $500,000 and he ultimately paid the plaintiff $500,000 to settle what he had thought was a long-closed chapter of his life.
Some states have had impressive results diverting divorces into court-sponsored mediation. The key to understanding statistics regarding mediation is that most American couples hardly have anything to litigate over. The majority of divorcing couples have minimal savings and sometimes the task is about dividing debts rather than property. Child support is by formula and the custody case may be over before it starts, e.g., because a state always awards 50/50 or awards custody to women 95 percent of the time. Thus people who choose court-sponsored mediation may primarily be those who simply don't have enough money to feed lawyers on both sides of a true lawsuit.
Mediation is uncommon in the U.S. any time that there are items in dispute that have a significant cash value (this can include children, depending on a state's child support formula) and that are discretionary with a judge.
One industry rule of thumb that we heard from multiple attorneys in different forms is "the richer the parents, the worse the kids will turn out post-divorce." This may be due in part to the fact that, when significant money is involved, plaintiffs will typically reject mediation: "You don't give up a lottery ticket with a 90-percent chance of winning," said one litigator.
"All of the psychological studies show that children of mediated divorces turn out much better than children of litigated divorces," one attorney noted. Why should that be? "Litigation makes people angry -- the plaintiff because she isn't getting what she wants or at least not as quickly as she wants and the defendant because he is losing everything," was the reply. "So at the end of the process you've got kids with a mom who has been transformed by hatred and greed, and a dad who has lost everything that mattered to him and is angry with the system. Also, remember that every Web site and every book on divorce tells consumers that mediation is helpful and litigation is harmful to children. The end result of most of my cases is that the children spend most of their time with a person who has voluntarily chosen to do something harmful to children. It is one of the ironies of our divorce system that kids are routinely assigned to spend nearly all of their time with a parent who has demonstrated, by filing a lawsuit rather than mediating, an essential disregard for their well-being."