Any experienced matrimonial attorney who straddles the litigation and mediation spheres can attest to the general misconception that mediation is calm, smooth sailing, and hunky dory, while court cases are vicious and adversarial.

This most definitely is NOT the case!

At times, during mediation, spouses can be at each other’s throats, while litigation cases may be quite untroubled and contained, especially with the help of skilled attorneys who can cut through the malarkey, and not take extreme and impractical positions that are huge time and money wasters.

Regardless of which method of divorce clients engage in — mediation or litigation — there is the potential for calm, open-heartedness, and kindness and the potential for contention, obstinacy, and destruction along a continuum throughout the process.

People often ask me how I do what I do. There is a view that it is disheartening or like being implanted in the deep bowels of sewage. On the contrary, it is often very inspiring and like chicken soup for the soul.

People’s character is most put to the test when they are navigating unfamiliar terrain and troubled waters, and that is, especially, what can make this practice so humane.

I recently had a litigation case where the couple had not touched or been remotely intimate in quite some time. The wife had a tremendous amount of resentment towards the husband, as he had engaged in an affair that she learned about.

Notwithstanding such, the husband displayed no visible guilt and was very difficult during the litigation, playing hardball at every twist and turn. Everything was a battle with him. Finally, at the 11th hour, he agreed to terms that were beneficial to the wife, and she was more than content with what she would be receiving.

The parties were scheduled to be in court on Monday morning, and the attorneys worked arduously over the weekend to draft the extensive and detailed agreement to be just so, exactly as the parties had agreed. Monday morning, in court, the husband takes one look at his wife and tells her that, after everything they had been through over the years, he thought about it overnight and decided he wants to give her more and will give her the house outright and pay off the mortgage, so she can have peace of mind about it. She was so touched that he went above-and-beyond what his monetary obligation would have been under the law and as per what they had already agreed upon (to her satisfaction), and that he was attentive to something so meaningful to her.

She felt that he could never undo what he had done to salvage their marriage, but that this was a token to her and his way of acknowledging her hurt and trying to make amends. The attorneys had to step outside the courtroom at that point to start making changes by hand to the pre-printed agreement. Five copies had to be edited in the courtroom hallway. After the parties signed and were orally allocuted, they walked towards each other and held one another in the deepest embrace for the longest time. And after they let go, they did it again, and she thanked him for giving her the closure she needed. The judge, who is normally no-nonsense and runs a tight calendar, stopped in her tracks, and just sat there staring at them with a warm smile and the brightest twinkle in her eyes.

In another case, the parties had been separated for three years, and the wife had a new partner whom she very much wanted to marry yesterday, but for the slight problem that she was still married to husband #1. She lashed out at her ex constantly, and vented all her frustrations at him for not resolving their outstanding issues sooner, so she could move on. He was very resentful and felt she was somewhat verbally abusive to him in her constant beratements. She then found out that the doctor recommended he undergo shoulder surgery or he would be severely limited from playing sports. All the while, he had been covered under her health insurance plan, with her covering the cost. She had an employer through which she received health insurance, but he was an independent contractor, and it would have been very costly for him to secure his own health insurance, as one must do upon divorce, when they can no longer be covered under their ex-spouse’s insurance plan.

Upon learning of the doctor’s recommendation, without skipping a beat, she told him she absolutely wanted him to have the surgery and have the necessary physical therapy treatments afterwards, without feeling pressured about it, so he could play the sports she knew he loved so much, and that she would wait until his treatments were finished to proceed. She was able to put her own needs to move on in abeyance for the larger picture of not depriving him of his passion.

There are mediation cases where parties yell at each other to drop dead, yet they keep coming back to protect one another (for a multitude of reasons) and their children, albeit it being very difficult for them to even be in the same room as their spouse.   

The reality is that people indulge more in the negative — anecdotes about spouses yelling at each other to get hit by a bus, telling each other that they are terrible fathers and mothers, and looking to one-up the other, but I can match every negative anecdote with at least one positive one, and probably even more. Perhaps the light shines greater when it is surrounded by darkness, but there are many rays of sunshine in this practice. The rebuilding can, and often is, greater than the breakage. The personal character demonstrated when one is put to the test often triumphs.

Feel free to contact The Law & Mediation Offices of Cheryl Stein to discuss constructive ways towards separation and divorce.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com