Mediation Massacre

Traditional divorce processes are destroying the fabric of American society. Yet another tragic news story that didn’t need to happen:

On December 4, 2013, a doctor attending mediation in Manchester, Tenn., was gunned down by his estranged wife in front of his lawyer’s office.  Dr. Harry Bartee, 47, was shot multiple times by Brenda Bartee on the sidewalk in front of the law offices.  The couple was at the lawyer’s office for mediation but, according to the police investigator, “the mediation apparently didn’t go well.”  Brenda Bartee gave police a statement admitting to the shooting, he said.  Why?  “She just said he’d been picking on her.”

Collaborative Divorce is not yet a well-known option for people seeking to terminate a marital (or other romantic) relationship.  And for those who HAVE heard of it, we tend to equate it with a process that sounds the same, but really is not.

Mediation is not the same as Collaboration!  Arguably, the most the two processes have in common is that the mediation dispute resolution process was as novel to the dissolution of marriage community 20-30 years ago as collaborative practice is today.

Mediation involves, at a minimum, the use of three people: a neutral professional, who is usually a lawyer, a mental health professional, or a financial professional, who is trained in mediation, and the two parties hoping to resolve their dispute(s).  Often the parties have one or both of their attorneys at mediation, but lawyers are not required.  Mediation can also involve other neutral professionals and persons who are not unbiased, but, rather, aligned with one party or the other.  This is, however, rare.  Mediation is often court-ordered nowadays, but the parties are not required to successfully mediate, only to mediate in good faith. Typically, litigators regard mediation as merely a “free look” at the other side’s case.

The collaborative process, on the other hand, generally involves at least the use of a facilitator (a neutral professional not only trained in collaborative practice, but also with degrees of various types in mental health), a financial neutral (also trained in collaborative practice), and the two lawyers, who are definitely NOT neutral, who represent the two parties, but who have also received collaborative process training.  While other neutrals may be brought into the process on an as needed basis, the facilitator and the financial professional are usually required. The facilitators control the process, not the lawyers.

Collaborative divorce is never court-ordered.  It is outside the judicial process.  But a critical element of collaborative practice is that the parties formally agree, as they begin the process, that, if one or both of them opt out and go to court, both of their lawyers are relieved of responsibility, and both parties must find new counsel to represent their interests in the ensuing court battle.  This incentivizes the lawyers to help resolve the dispute through collaboration.

The collaborative facilitator is charged with leading the team, managing the meetings, and refereeing the process.  The facilitator also helps the parties manage the pain of ending the relationship and the stress of the process, while, at the same time, keeping the parties focused on their ultimate goals.  Had the Bartees been in collaboration, rather than in mediation, they would have had a facilitator to help Ms. Bartee manage her emotions, as well as to help Dr. Bartee communicate more effectively with his wife.  Arguably, the collaborative process would have ensured that this shooting never occurred.  It certainly is the only process that recognizes the pain that terminating a relationship causes, and focuses on managing the parties’ emotions, as well as the other issues raised by their divorce.

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